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Sunday, March 25, 2018

SC and ST Act- arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory. i) Proceedings in the present case are clear abuse of process of court and are quashed. ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra); Iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention. iv].To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.-Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.416 OF 2018
(Arising out of Special Leave Petition (Crl.)No.5661 of 2017)
DR. SUBHASH KASHINATH MAHAJAN …Appellant
VERSUS
THE STATE OF MAHARASHTRA AND ANR. …Respondents
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This appeal has been preferred against the order dated 5th
May, 2017 of the High Court of Judicature at Bombay in Criminal
Application No.1015 of 2016.
2. On 20th November, 2017 the following order was passed by
this Court:-
“Heard learned counsel for the parties.
Certain adverse remarks were recorded against respondent
no. 2-Bhaskar Karbhari Gaidwad by the Principal and Head
of the Department of the College of Pharmacy where
respondent no. 2 was employed. Respondent No. 2 sought
1
sanction for his prosecution under the provisions of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 and for certain other connected
offences. The said matter was dealt with by the petitioner
and sanction was declined. This led to another complaint
by the respondent no. 2 against the petitioner under the
said provisions. The quashing of the said complaint has
been declined by the High Court.
The question which has arisen in the course of
consideration of this matter is whether any unilateral
allegation of mala fide can be ground to prosecute officers
who dealt with the matter in official capacity and if such
allegation is falsely made what is protection available
against such abuse.
Needless to say that if the allegation is to be acted upon,
the proceedings can result in arrest or prosecution of the
person and have serious consequences on his right to
liberty even on a false complaint which may not be
intended by law meant for protection of a bona fide victim.
The question is whether this will be just and fair procedure
under Article 21 of the Constitution of India or there can be
procedural safeguards so that provisions of Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 are not abused for extraneous considerations.
Issue notice returnable on 10
th
January, 2018.
In the meanwhile, there shall be stay of further
proceedings.
Issue notice to Attorney General of India also as the issue
involves interpretation of a central statute.
Mr. Amrendra Sharan, learned senior counsel is requested
to assist the Court as amicus. Mr. Sharan will be at liberty
to have assistance of Mr. Amit Anand Tiwari, Advocate. …
…”
3. Though certain facts are stated while framing the question
already noted, some more facts may be noted. The appellant
2
herein is the original accused in the case registered at City Police
Station, Karad for the offences punishable under Sections 3(1)(ix),
3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) as
also Sections 182, 192, 193, 203 and 219 read with 34 of the
Indian Penal Code, 1860 (IPC). He was serving as Director of
Technical Education in the State of Maharashtra at the relevant
time.
4. The second respondent - the complainant is an employee of
the department. He was earlier employed as a Store Keeper in
the Government College of Pharmacy, Karad. He was later posted
at Government Distance Education Institute, Pune. Dr. Satish
Bhise and Dr. Kishor Burade, who were his seniors but nonscheduled
caste, made adverse entry in his annual confidential
report to the effect that his integrity and character was not good.
He lodged FIR with Karad Police Station against the said two
officers under the Atrocities Act on 4th January, 2006 on that
ground. The concerned Investigating Officer applied for sanction
under Section 197 Cr.P.C. against them to the Director of Technical
3
Education on 21st December, 2010. The sanction was refused by
the appellant on 20th January, 2011. Because of this, ‘C’ Summary
Report was filed against Bhise and Burade which was not
accepted by the court. He then lodged the present FIR against
the appellant. According to the complainant, the Director of
Technical Education was not competent to grant/refuse sanction
as the above two persons are Class-I officers and only the State
Government could grant sanction. Thus, according to him, the
appellant committed the offences alleged in the FIR dated 28th
March, 2016 by illegally dealing with the matter of sanction.
5. The complaint is fully extracted below:
“In the year 2009 I was working as store keeper in the
Govt. Pharmacy College Karad, at that time I have
registered complaint to Karad City Police Station Cr.
NO. 3122/09 u/s 3(1)9, 3(2)(7)6 of S.C. & S.T.
(Preention of Atrocities) Act and the investigation was
done by Shri Bharat Tangade, then D.Y.S.P. Karad
division Karad in the investigation 1) Satish
Balkrushna Bhise, then Principal Pharmacy College
Karad, 2) Kishor Balkrishna Burade, then Professor,
Pharmacy College Karad has been realized as
accused in the present crime. Investigation officer
collect sufficient evidence against both the accused,
but both the accused are from Govt. Technical
Education department Class 1 Public Servant, so
before filing charge sheet against them he wrote the
letter to the senior office of the accused u/s 197 of
Cr.P.C. to take the permission at that time Mr.
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Subhash Kashinath Mahajan was working as incharge
director of the office. Today also he is working as
same post. Mr. Mahajan does not belongs to S.C. &
S.T. but he knew that I belongs to S.C. and S.T.
In fact both the accused involved in crime No.
3122/09 are working on class 1 post and to file a
charge sheet against them the permission has to be
taken according to Cr.P.C. Section 197. This fact
known to Shri Mahajan and Mr. Mahajan knew that
this office did not have such right to give permission.
So Mr. Mahajan send letter to Mumbai Office. Infact
to give the required permission or to refuse the
permission is not comes under the jurisdiction of
incharge direction, Technical Education Mumbai. But,
Mr. Mahajan misused his powers so that, accused
may be benefited, he took the decision and refused
the permission to file the charge sheet against the
accused. So that, investigation officer Shri Bharat
Tangade fails to submit the charge sheet against the
both the accused, but he complain to submit ‘C’
summary report.”
6. The appellant, after he was granted anticipatory bail, applied
to the High Court under Section 482 Cr.P.C. for quashing the
proceedings on the ground that he had merely passed a bonafide
administrative order in his official capacity. His action in doing so
cannot amount to an offence, even if the order was erroneous.
The High Court rejected the petition.
7. Dealing with the contention that if such cases are not
quashed, recording of genuine adverse remarks against an
5
employee who is a member of SC/ST or passing a legitimate
administrative order in discharge of official duties will become
difficult and jeopardise the administration, the High Court
observed that no public servant or reviewing authority need to
apprehend any action by way of false or frivolous prosecution but
the penal provisions of the Atrocities Act could not be faulted
merely because of possibility of abuse. It was observed that in
the facts and circumstances, inherent power to quash could not
be exercised as it may send a wrong signal to the downtrodden
and backward sections of the society.
8. We have heard Shri Amrendra Sharan, learned senior
counsel, appearing as amicus, Shri Maninder Singh, learned
Additional Solicitor General, appearing for the Union of India, Shri
C.U. Singh, learned senior counsel and the other learned counsel
appearing for the intervenors and learned counsel for the parties
and perused the record.
9. We may refer to the submissions put forward before the
Court:
6
Submissions of learned Amicus
10. Learned amicus submitted that in facts of the present case,
no offence was made out under Sections 3(1)(ix), 3(2)(vi) and 3(2)
(vii) of the Atrocities Act and Sections 182, 192, 193, 203 and 219
of the Indian Penal Code and, thus, the High Court ought to have
quashed the proceedings. He submitted the following table to
explain his point:
Provisions of the SC/ST Act
invoked in this case
Applicability of the provisions in
the facts of the case
3. Punishment for offences atrocities.
– 3 [(1) Whoever, not being a
member of a Scheduled Caste or a
Scheduled Tribe, -
(ix): gives any false or frivolous
information to any public servant and
thereby causes such public servant to
use his lawful power to the injury or
annoyance of a member of a
Scheduled Caste or a Scheduled
Tribe;
The provision mandates a “false and
frivolous information given by the
public servant”, however in the
present case, the Petitioner has
denied sanction for prosecution which
clearly does not amount to false or
frivolous information. Thus, a case
under Section 3(1)(ix) of the SC/ST
Act is not made out.
3(2)(vi): knowingly or having reason
to believe that an offence has been
committed under this Chapter,
causes any evidence of the
commission of that offence to
disappear with the intention of
screening the offender from legal
punishment, or with that intention
gives any information respecting the
offence which he knows or believes to
be false, shall be punishable with the
punishment provided for that offence;
Section 3(2)(vi) requires causing of
disappearance of evidence with the
intention of screening the offender
from legal punishment, however, in
the present case, there is no
allegation that the petitioner has
caused disappearance of any
evidence. Therefore the ingredients
of Sections 3(2)(vi) is not made out.
(vii) being a public servant, commits
any offence under this section, shall
be punishable with imprisonment for
Since no offence under section 3 of
the SCST is made out this section
cannot be attracted.
7
a term which shall not be less than
one year but which may extend to
the punishment provided for that
offence.
Provisions of IPC alleged Applicability of the provisions in
the facts of instant case
182. False information, with
intent to cause public servant to
use his lawful power to the injury
of another person. – Whoever gives
to any public servant any information
which he knows or believes to be
false, intending thereby to cause, or
knowing it to be likely that he will
thereby cause, such public servant –
(a) to do or omit anything which such
public servant ought not to do or omit
if the true state of facts respecting
which such information is given were
known by him, or
(b) to use the lawful power of such
public servant to the injury or
annoyance of any person, shall be
punished with imprisonment of either
description for a term which may
extend to six months, or with fine
which may extend to one thousand
rupees, or with both.
A false information is an information
which has been given deliberately
with an intention to deceive.
However, in this case denial of
sanction for prosecution cannot be
construed as a false information in
any way. It is an order of
administrative authority. Therefore
no case is made out under Section
182 of the code.
192. Fabricating false evidence. –
whoever causes any circumstance to
exist or *[makes any false entry in
any book or record, or electronic
record or makes any document or
electronic record containing a false
statement, intending that such
circumstance, false entry or false
statement may appear in evidence in
a judicial proceeding, or in a
proceeding taken by law before a
public servant as such, or before an
arbitrator, and that such
circumstance, false entry or false
The ingredients of Section 192 IPC is
not made out therefore this section
will not apply in the present case. It
was not a judicial proceeding and the
petitioner has neither fabricated false
evidence nor made any false entry in
any book, record or electronic data.
Mere exercising of administrative
power cannot be construed as
fabricating false evidence.
8
statement, so appearing in evidence,
may cause any person who in such
proceeding is to form an opinion upon
the evidence, to entertain an
erroneous opinion touching any point
material to the result of such
proceeding, is said “to fabricate false
evidence”.
193. Punishment for false
evidence. – Whoever intentionally
gives false evidence in any stage of a
judicial proceeding, or fabricates false
evidence for the purpose of being
used in any stage of a judicial
proceeding, shall be punished with
imprisonment of either description for
a term which may extend to seven
years, an shall also be liable to fine,
and whoever intentionally gives or
fabricates false evidence in any other
case, shall be punished with
imprisonment of either description for
a term which may extend to three
years, and shall also be liable.
Since there was no ‘false evidence’,
therefore the possibility of
punishment accruing to false
evidence is ruled out.
203. Giving false information
respecting an offence committed.
– Whoever knowing or having reason
to believe that an offence has been
committed, gives any information
respecting that offence which he
knows or believes to be false, shall be
punished with imprisonment of either
description for a term which may
extend to two years, or with fine, or
with both.
For the reasons already stated
hereinabove, the present case does
not meet the ingredients of this
section, therefore is precluded from
being prosecuted here. A mere
opinion of a senior officer in an ACR
does not amount to giving false
information.
219. Public servant in judicial
proceeding corruptly making
report, etc., contrary to law. –
Whoever, being a public servant,
corruptly or maliciously makes or
pronounces in any stage of a judicial
proceeding, any report, order verdict,
or decision which he knows to be
contrary to law, shall be punished
with imprisonment of either
description for a term which may
The denial of sanction to prosecute
the two government servants against
whom the Complainant/ Respondent
no. 2 had originally filed an FIR
cannot be construed as making
corrupt report therefore the case of
the petitioner does not fall within the
ambit of this provision.
9
extend to seven years, or with fine, or
with both.
11. It was submitted by learned amicus that FIR was lodged after
five years of the order passed by the appellant. The order was
passed on 20th January, 2011 while the FIR was lodged on 28th
March, 2016 which further strengthened the case for quashing in
addition to the facts and legal contentions noted in the previous
para. Moreover, in absence of any allegation of malafides, even if
order passed by the appellant was erroneous proceedings against
him are not called for.
12. Learned amicus submitted that under the scheme of the
Atrocities Act, several offences may solely depend upon the
version of the complainant which may not be found to be true.
There may not be any other tangible material. One sided version,
before trial, cannot displace the presumption of innocence. Such
version may at times be self serving and for extraneous reason.
Jeopardising liberty of a person on an untried unilateral version,
without any verification or tangible material, is against the
fundamental rights guaranteed under the Constitution. Before
10
liberty of a person is taken away, there has to be fair, reasonable
and just procedure. Referring to Section 41(1)(b) Cr.P.C. it was
submitted that arrest could be effected only if there was ‘credible’
information and only if the police officer had ‘reason to believe’
that the offence had been committed and that such arrest was
necessary. Thus, the power of arrest should be exercised only
after complying with the safeguards intended under Sections 41
and 41A Cr.P.C. It was submitted that the expression ‘reason to
believe’ in Section 41 Cr.P.C. had to be read in the light of Section
26 IPC and judgments interpreting the said expression. The said
expression was not at par with suspicion. Reference has been
made in this regard to Joti Prasad versus State of Haryana
1
,
Badan Singh @ Baddo versus State of U.P. & Ors.
2
, Adri
Dharan Das versus State of West Bengal
3
, Tata Chemicals
Ltd. versus Commissioner of Customs
4 and Ganga Saran &
Sons Pvt. Ltd. versus Income Tax Officer & Ors.
5
In the
present context, to balance the right of liberty of the accused
guaranteed under Article 21, which could be taken away only by
1 1993 Supp (2) SCC 497
2 2002 CriLJ 1392
3 (2005) 4 SCC 303
4 (2015) 11 SCC 628
5 (1981) 3 SCC 143
11
just fair and reasonable procedure and to check abuse of power
by police and injustice to a citizen, exercise of right of arrest was
required to be suitably regulated by way of guidelines by this
Court under Article 32 read with Article 141 of the Constitution.
Some filters were required to be incorporated to meet the
mandate of Articles 14 and 21 to strengthen the rule of law.
13. Learned amicus submitted that this Court has generally
acknowledged the misuse of power of arrest and directed that
arrest should not be mechanical. It has been laid down that the
exercise of power of arrest requires reasonable belief about a
person’s complicity and also about need to effect arrest. Reliance
has been placed on Joginder Kumar versus State of U.P.
6
,
M.C. Abraham versus State of Maharashtra
7
, D.
Venkatasubramaniam versus M. K. Mohan
Krishnamachari
8
, Arnesh Kumar versus State of Bihar
9
and Rini Johar & Ors. versus State of M.P. & Ors.
10
6 (1994) 4 SCC 260
7 (2003) 2 SCC 649
8 (2009) 10 SCC 488
9 (2014) 8 SCC 273
10 (2016) 11 SCC 703
12
14. It was submitted that in the context of the Atrocities Act, in
the absence of tangible material to support a version, to prevent
exercise of arbitrary power of arrest, a preliminary enquiry may
be made mandatory. Reasons should be required to be recorded
that information was credible and arrest was necessary. In the
case of public servant, approval of disciplinary authority should be
obtained and in other cases approval of Superintendent of Police
should be necessary. While granting such permission, based on a
preliminary enquiry, the authority granting permission should be
satisfied about credibility of the information and also about need
for arrest. If an arrest is effected, while granting remand, the
Magistrate must pass a speaking order as to correctness or
otherwise of the reasons for which arrest is effected. These
requirements will enforce right of concerned citizens under
Articles 14 and 21 without in any manner affecting genuine
objects of the Act.
15. Learned amicus further submitted that Section 18 of the
Atrocities Act, which excludes Section 438 Cr.P.C., violates
constitutional mandate under Articles 14 and 21 and is ultra vires
13
the Constitution. The said provision was upheld in State of M.P.
versus Ram Krishna Balothia
11 but the said judgment was in
ignorance of the Constitution Bench judgment in Gurbaksh
Singh Sibbia etc. versus State of Punjab
12
. If a Court is not
debarred from granting anticipatory bail even in most heinous
offences including murder, rape, dacoity, robbery, NDPS, sedition
etc., which are punishable with longer periods depending upon
parameters for grant of anticipatory bail, taking away such power
in respect of offences under the Act is discriminatory and violative
of Article 14. Exclusion of court’s jurisdiction, even where the
court is satisfied that arrest of a person was not called for, has no
nexus with the object of the Atrocities Act. In this regard, reliance
has been placed on following observations in Sibbia (supra).
“10. Shri V.M. Tarkunde, appearing on behalf of some
of the appellants, while supporting the contentions of
the other appellants, said that since the denial of bail
amounts to deprivation of personal liberty, courts
should lean against the imposition of unnecessary
restrictions on the scope of Section 438, when no such
restrictions are imposed by the legislature in the terms
of that section. The learned Counsel added a new
dimension to the argument by invoking Article 21 of
the Constitution. He urged that Section 438 is a
procedural provision which is concerned with the
personal liberty of an individual who has not been
11 (1995) 3 SCC 221
12 (1980) 2 SCC 565
14
convicted of the offence in respect of which he seeks
bail and who must therefore be presumed to be
innocent. The validity of that section must accordingly
be examined by the test of fairness and
reasonableness which is implicit in Article 21. If the
legislature itself were to impose an unreasonable
restriction on the grant of anticipatory bail, such a
restriction could have been struck down as being
violative of Article 21. Therefore, while determining
the scope of Section 438, the court should not impose
any unfair or unreasonable limitation on the
individual’s right to obtain an order of anticipatory
bail. Imposition of an unfair or unreasonable limitation,
according to the learned Counsel, would be violative
of Article 21, irrespective of whether it is imposed by
legislation or by judicial decision.
13. … …The High Court and the Court of Session to
whom the application for anticipatory bail is made
ought to be left free in the exercise of their judicial
discretion to grant bail if they consider it fit so to do
on the particular facts and circumstances of the case
and on such conditions as the case may warrant. ….
21. …. …A wise exercise of judicial power inevitably
takes care of the evil consequences which are likely to
flow out of its intemperate use. …
26. We find a great deal of substance in Mr.
Tarkunde’s submission that since denial of bail
amounts to deprivation of personal liberty, the court
should lean against the imposition of unnecessary
restrictions on the scope of Section 438, especially
when no such restrictions have been imposed by the
legislature in the terms of that section. Section 438 is
a procedural provision which is concerned with the
personal liberty of the individual, who is entitled to the
benefit of the presumption of innocence since he is
not, on the date of his application for anticipatory bail,
convicted of the offence in respect of which he seeks
bail. An over-generous infusion of constraints and
conditions which are not to be found in Section 438
15
can make its provisions constitutionally vulnerable
since the right to personal freedom cannot be made to
depend on compliance with unreasonable restrictions.
The beneficent provision contained in Section 438
must be saved, not jettisoned. No doubt can linger
after the decision in Maneka Gandhi (1978) 1 SCC 248,
that in order to meet the challenge of Article 21 of the
Constitution, the procedure established by law for
depriving a person of his liberty must be fair, just and
reasonable. Section 438, in the form in which it is
conceived by the legislature, is open to no exception
on the ground that it prescribes a procedure which is
unjust or unfair. We ought, at all costs, to avoid
throwing it open to a Constitutional challenge by
reading words in it which are not to be found therein.”
16. Reliance has also placed on recent judgment of this Court in
Nikesh Tarachand Shah versus Union of India and Anr.
13
declaring Section 45 of the Prevention of Money Laundering Act,
2002 unconstitutional. This Court held that fetters on grant of
bail under the said provision when such fetters were not
applicable to other offences punishable in like manners was
discriminatory and against the principle of fair just and
reasonable procedure.
Submissions of counsel for intervenor supporting the
appeal
13 (2017) 13 Scale 609, 2017 SCC OnLine SC 1355
16
17. Ms. Manisha T. Karia, counsel appearing for intervenor on
behalf of Sapna Korde @ Ketaki Ghodinde, who also claims to be
victim of a false complaint, submitted that respondent No. 2
lodged a false FIR No. 3210 of 2017 dated 2nd November, 2017
against her at Khadki police station alleging that she, in collusion
with the appellant herein, pressurized respondent no. 2 to
withdraw the FIR No.164 of 2016 registered with Karad Police
Station and she falsely implicated respondent no. 2 in a sexual
harassment case. She is working as an Assistant Professor in the
Department of Instrumentation and Control in College of
Engineering, Pune since last eight years where respondent No. 2
was working as a storekeeper. She had made a complaint against
him for her sexual harassment and as a reaction, the FIR was
lodged by respondent No. 2 by way of the Atrocities Act. Her
anticipatory bail application was rejected by the session court but
the High Court, vide order dated 23rd November, 2017, granted
interim protection against arrest. Thereafter, respondent No. 2
initiated proceedings under Section 107 Cr.P.C. and the intervenor
received notice dated 2nd December, 2017 from the Magistrate. It
was submitted that there was no safeguard against false
17
implication, undue harassment and uncalled for arrest and thus,
this Court must incorporate safeguards against unreasonable and
arbitrary power of arrest in such cases without following just fair
and reasonable procedure which may be laid down by this Court.
Such requirement, it was submitted, was implicit requirement of
law but was not being followed.
18. Laying down safeguards to enforce constitutional guarantee
under Article 21 was necessary in view of the Sixth Report dated
19th December, 2014 of the Standing Committee on Social Justice
and Empowerment (2014-15) on the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014
rejecting the stand of the Ministry to the effect that there was no
need to provide for action against false or malafide implication
under the Atrocities Act. It was observed therein:-
“3.9 The Committee are not inclined to accept the
contention of the Ministry that those who are found to
be misusing the provisions of the Act can be tried as
per normal law of the land under the relevant sections
of the IPC. The Committee are of the firm view that
the PoA Act, being a special law, should be wholesome
to the extent that it must contain an inbuilt provision
for securing justice for those too who are falsely
implicated with mala fide under it. More so, when the
law makers have shown such perspicacity in
addressing such issues/misgivings when they inserted
18
clause 14 (Punishment for false or malicious complaint
and false evidence) in ‘The Sexual Harassment of
women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.”
19. Thus, unless this Court laid down appropriate guidelines,
there will be no protection available against arbitrary arrests or
false implications in violation of Article 21 of the Constitution. The
intervenor submitted that preliminary enquiry must be held
before arrest with regard to the following factors:
“a. Date and time of the incident and provocation.
b. Preexisting dispute between the parties or
rivalry.
c. Gravity of the issue involved.
d. Nature of allegations by both the parties.
e. Necessary documents and evidence by the
victim and accused to substantiate their case to
be placed before committee.
f. The proceedings may be recorded to avoid
allegations of bias and non-transparency.”
20. The following further safeguards have been suggested by
the counsel for the intervenor:
“Arrest specifically in connection with offences under
POA Act should only be made with the prior sanction
of the Magistrate. However this may not apply in case
arrest has to be made in connection with other
19
offences under IPC. Further the gravity of offence also
needs to be seen since most of the cases at the
institutional level are only on the basis of mere
altercations or action by the public servants in their
official capacity.
Secondly if the Accused under the POA Act surrenders
with prior notice to the Public Prosecutor, then his bail
Application should be considered on the same day and
if not the regular bail, then at the least interim bail
should be granted in the interest of justice. This
requirement may be read into Section 18 of the POA
Act.”
21. In support of the submission that courts have acknowledged
the misuse of law, reliance has also been placed on the following
Judgments :
(i) Judgment of the Madras High Court in Jones versus
State
14
wherein the High Court observed:
“This Court recently has brought to light the misuse
of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 against people
of other community. This is another example of
misuse of the Act. The purpose of bringing SC & ST
Act is to put down the atrocities committed on the
members of the scheduled castes and scheduled
tribes. The law enforcing authorities must bear in
mind that it cannot be misused to settle other
disputes between the parties, which is alien to the
provisions contemplated under the Act. An Act
enacted for laudable purpose can also become
unreasonable, when it is exercised overzealously by
the enforcing authorities for extraneous reasons. It
14 2004 SCC OnLine Mad 922: 2004 CriLJ2755
20
is for the authorities to guard against such misuse
of power conferred on them.”
(ii) Judgment of Gujarat High Court in Dr. N.T. Desai vs.
State of Gujarat
15 observing :
“But then having closely examined the complaint
more particularly in the context and light of the
backdrop of the peculiar facts situation highlighted
by the petitioner leading ultimately to filing of the
complaint, this Court prime facie at the very outset
is at some doubt about the complainant's story and
yet if it readily, mechanically like a gullible child
accepts the allegations made in the complaint at its
face value, it would be surely blundering and
wandering away from the path of bail-justice,
making itself readily available in the hands of the
scheming complainant who on mere asking will get
arrested accused on some false allegations of
having committed non-bailable offence, under the
Atrocity Act, meaning thereby the Court rendering
itself quite deaf, dumb and blind mortgaging its
commonsense, ordinary prudence with no
perception for justice, denying the rightful
protection to the accused becoming ready pawn
pliable in the hands of sometime scheming,
unscrupulous complainants !!! This sort of a
surrender to prima facie doubtful allegation in the
complaint is not at all a judicial approach, if not
unjudicial !! At the cost of repetition, 1 make it clear
that these observations are only preliminary, at this
stage only in peculiar background of the case
highlighted by petitioner-accused and for that
purpose may be even in future be so highlighted by
the accused in some other cases to the satisfaction
of the Court ! The reason is having regard to the
basic cardinal tenets of the criminal jurisprudence
more particularly in view of the peculiar
circumstances highlighted by the accused which
allegedly actuated complainant to victimise him, in
15 (1997) 2 GLR 942
21
case if ultimately at the end of trial what the
accused has submitted in defence is accepted as
probable or true and as a result, the accused is
given a clean bill, holding that the complaint was
nothing else but false, concoction by way of spite to
wreck the personal vengeance then in that case
what indeed would be the remedy and redresses in
the hands of the petitioner, who in the instant case
is Doctor by profession and for that purpose in
other cases an innocent citizen? He stands not only
stigmatised by filing of a false complaint against
him but he shall stand further subjected to trial !!
Not only that but before that even subjected to
arrest before the public eye and taken to Special
Court where only he could pray for bail ! Thus,
subjected to all sort of agonies, pains and
sufferings lowering his image and esteem in the
eye of public because the Court when approached
adopted the helpless attitude? Under such
bewildering circumstances, what indeed would be
the face of the Court and the fate of the
Administration of Justice denying bail to some
victimised innocent accused at crucial stage when
he surrenders to the Court custody for the
purpose?!! Should the Court proclaiming doing
justice stand befooled at the hands of some
mischievous complainant with head-down in shame
!! Supposing for giving false evidence before the
Court, the complainant is ordered to be prosecuted,
but then will such prosecutions of complainant
bring back the damage already done to an innocent
!! Bearing in mind this most embarrassing and
excruciating situation created by the
complainant when, this Court as a
Constitutional functionary is duty bound to
zealously protect the liberty of citizen, should
it be helplessly watching and passively
surrendering itself to sometimes prima facie
ex-facie malicious complaint denying simple
bail to the accused? In this regard, perhaps, it
may be idly said that accused can be given
compensation for the malicious prosecution
22
and ultimate refusal of bail or anticipatory
bail !! True, but then in that case what
compensation can any Court would be in a
position to give when the complainant is a
person who is poor enough unable to pay a
single pie?!! Not only that but in case
complainant is rich and able to pay
compensation then even can any monetary
compensation ever adequately compensate
the wrong accused suffered at the hands of
the malicious complainant? It is here that the
conscience of this Court stands pricked and
terribly perturbed and indeed will have a
sleepless night if what ought we do not know
where the petitioner, in the facts and
circumstances of the case be quite innocent
and accordingly a needy consumer of bail
justice and yet is unnecessarily subjected to
arrest taken to the police custody and then
before Court because of denial of bail to him
at this stage !!”
(iii) Dealing with the same issue, the Gujarat High Court in
Dhiren Prafulbhai Shah versus State of Gujarat
16 observed
as under:
“48. In the course of my present sitting, I have come
across various cases wherein the provisions of
Atrocities Act are misused. I find that various
complaints are filed immediately after elections, be it
Panchayat, Municipal or Corporation, alleging offence
under the Atrocities Act. I have no hesitation in saying
that in most of the cases, it was found that the
F.I.R.s/Complaints were filed only to settle the score
with their opponents after defeat in the elections. I
have also come across various cases, wherein, private
civil disputes arising out of property, monetary
16 2016 CriLJ 2217
23
matters, dispute between an employee and employer,
dispute between the subordinate and his superior - are
given penal and the complaints are being filed either
under Section 190 r/w. 200 or F.I.Rs. at the police
station. The matter in hand is one another example of
misuse of the Act. As observed by me earlier, the
purpose of bringing SC and ST Act is to put-down the
atrocities committed on the members of the
Scheduled Castes and Scheduled Tribes. The law
enforcing authorities must bear in mind that it cannot
be misused to settle other disputes between the
parties like the case one in hand, which is alien to the
provisions contemplated under the laudable Act. An
Act enacted for laudable purpose can also become
unreasonable, when it is exercised over-zealously by
the enforcing authorities for extraneous reasons. It is
for the authorities to guard against such misuse of
power conferred on them.
49. Passing mechanically orders by the Court of
Magistrates in complaint and/or registration of the
F.I.R. at the Police Station, which do not have any
criminal element, causes great hardships, humiliation,
inconvenience and harassment to the citizens. For no
reasons the reputation of the citizen is put to stake as
immediately after the said orders are passed, innocent
citizens are turned as accused. One should not
overlook the fact that there is Section-18 in the
Atrocities Act, which imposes a bar so far as the grant
of anticipatory bail is concerned, if the offence is one
under the Atrocities Act. If a person is accused having
committed murder, dacoity, rape, etc., he can pray for
anticipatory bail under Section-438 of the Cr.P.C. on
the ground that he is innocent and has been falsely
involved, but if a person alleged to have committed an
offence under the Atrocities Act, cannot pray for an
anticipatory bail because of the bar of Section-18 of
the Act, and he would get arrested. This is the reason
for the authorities to guard against any misuse of the
Provisions of the Atrocities Act.”
24
(iv) Judgment of Gujarat High Court in Pankaj D Suthar
versus State of Gujarat
17 observing :
“4. …But then, what according to this Court is
the most welcome step by way of collective
wisdom of the Parliament in ushering social
beneficial legislation cannot be permitted to
be abused and converted into an instrument
to blackmail to wreak some personal
vengeance for settling and scoring personal
vendetta or by way of some counter-blasts
against opponents some public servants, as
prima facie appears to have been done in the
present case. The basic questions in such
circumstances therefore are-Whether a torch
which is lighted to dispel the darkness can it
be permitted to set on fire the innocent
surroundings? Whether a knife an instrument
which is meant for saving human life by using
the same in the course of operation by a
surgeon, can it be permitted to be used in
taking the life of some innocent? The very same
fundamental question arises in the facts and
circumstances of this case also, viz., 'whether any
statute like the present Atrocities Act, especially
enacted for the purposes of protecting weaker
sections of the society hailing from S.C. & S.T.
communities can be permitted to be abused by
conveniently converting the same into a weapon of
wrecking personal vengeance on the opponents?'
The answer to this question is undoubtedly
and obviously 'No'. Under such circumstances,
if the Courts are to apply such provision of
Section 18 of the Atrocities Act quite
mechanically and blindly merely guided by
some general and popular prejudices based on
some words and tricky accusations in the
complaint on mere assumptions without
intelligently scrutinising and testing the
probabilities, truthfulness, genuineness and
17 (1992)1 GLR 405
25
otherwise dependability of the accusations in
the complaint etc., then it would be simply
unwittingly and credulously playing in the
hands of some scheming unscrupulous
complainant in denying the justice. Virtually, it
would be tantamount to abdicating and relegating
its judicial duty, function of doing justice in such
matters in favour and hands of such unscrupulous
complainant by making him a Judge in his own
cause. This is simply unthinkable and therefore
impermissible. Whether the provisions of any
particular Act and for that purpose the rules
made thereunder are applicable to the facts of
a particular case or not, is always and
unquestionably a matter which lies strictly
and exclusively within the domain of 'judicial
consideration-discretion' and therefore
neither mere allegations made in the
complainant by themselves nor bare denials
by the accused can either automatically vest
or divest the Court from discharging its
ultimate judicial function-duty to closely
scrutinise and test the prima facie
dependability of the allegations made in the
complaint and reach its own decision.”
(v) Judgment of Bombay High Court in Sharad versus
State of Maharashtra
18 observing :
“12. We hasten to add that such type of
complaints for rampant misuse of the
provisions of Section 3(1)(x) of the Scheduled
Castes & Scheduled Tribes (Prevention of
Atrocities) Act, 1989, are largely being filed
particularly against Public Servants/quasi
judicial/judicial officers with oblique motive
for satisfaction of vested interests. We think
the learned Members of the Bar have
enormous social responsibility and obligation
18 2015(4) BomCR(Crl) 545
26
to ensure that the social fabric of the society
is not damaged or ruined. They must ensure
that exaggerated versions should not be
reflected in the criminal complaints having
the outrageous effect of independence of
judicial and quasi judicial authorities so also
the public servants. We cannot tolerate
putting them in a spooked, chagrined and
fearful state while performing their public
duties and functions. We also think that a
serious re-look at the provisions of the Act of
1989 which are being now largely misused is
warranted by the Legislature, of course, on
the basis of pragmatic realities and public
opinion. A copy of this Judgment is directed
to be sent to the Law Commission for
information.”
22. It was, thus, submitted that above judgments are merely
illustrations to show that the abuse of law was rampant. If mere
accusations are treated as sufficient, it may unfairly damage the
personal and professional reputation of a citizen. There is a need
to balance the societal interest and peace on the one hand and
the protection of rights of victims of such false allegations on the
other. If allegations are against an employee, a committee
should be formed in every department as follows:-
“i. The employer or Head of every institution may
be directed to constitute an internal committee to look
into the matters and specific grievances related to
atrocities committed on the members of SC/ST.
…………..
27
ii. That before proceeding to lodge any FIR or
criminal complaint, a written complaint should made
to the internal committee of the institution along with
supportive evidence.
iii. Such committee may be given the power to
conduct a preliminary inquiry into the matter by
hearing both the parties and other evidence, so as to
ascertain the existence of a prima facie case under
the POA Act.”
23. It has been further suggested that Magistrate must verify the
averments in a Complaint/FIR to ascertain whether a prima facie
case is made out and whether arrest was necessary and only then
arrest should be made or continued.
24. It is further submitted by the counsel for the intervenor that
the Atrocities Act is also prone to misuse on account of monetary
incentive being available merely for lodging a case under Rule
12(4) of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Rules, 1995. Such incentive may encourage not only
genuine victims but, there being no safeguard even against a
false case being registered only to get the monetary incentive,
such false cases may be filed without any remedy to the affected
person.
28
25. Reference has also been made to Annual Report 2016-2017
of the Ministry of Social Justice and Empowerment and data
compiled by the Government of Maharashtra for the years 1990
to 2013 (dated 30th April, 2013) in respect of offences registered
under Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989 and Protection of Civil Rights Act, 1955
against Maharashtra Members of Parliament, Member of
Legislative Assembly, Zill Parishad Adhyaksha, Gramsevak,
Talathi, B.D.O., Collector, Palakmantri, Chief Minister, Home
Minister, IPS, IAS, IRS, IFS, MNP Commissioner, MNP Assistant
Commissioner, other Government Officer/Servant, other nonGovernment
Officers/Servants (numeric data prepared on the
basis of information available).
26. As per data (Crime in India 2016 – Statistics) compiled by the
National Crime Records Bureau, Ministry of Home Affairs under
the headings “Police Disposal of Crime/Atrocities against
SCs cases (State/UT-wise)-2016” (Table 7A.4) and “Police
Disposal of Crime/Atrocities against STs Cases (State/UTwise)
– 2016” (Table 7C.4) it is mentioned that in the year 2016,
29
5347 cases were found to be false cases out of the investigated
out of SC cases and 912 were found to be false cases out of ST
cases. It was pointed out that in the year 2015, out of 15638
cases decided by the courts, 11024 cases resulted in acquittal or
discharge, 495 cases were withdrawn and 4119 cases resulted in
conviction. (Reference: Annual Report 2016-2017 published by
the Department of Social Justice & Empowerment, Ministry of
Social Justice and Empowerment, Government of India).
Interventions against the appellant
27. Intervention application has also been filed by one Ananda
Sakharam Jadhav who claims to be convenor of the Bahujan
Karmachari Kalyan Sangh. Shri C.U. Singh, learned senior counsel
appearing for the said intervenor, submitted that where law is
clear no guideline should be issued by the Court. Reliance has
been placed on State of Jharkhand and Anr. Versus Govind
Singh
19 and Rohitash Kumar and Ors versus Om Prakash
Sharma and Ors.
20
It was submitted that this Court could not
lay down guidelines in the nature of legislation.
19 (2005)10 SCC 437
20 (2013)11 SCC 451
30
28. Shri C.U. Singh submitted that the Section 18 of the
Atrocities Act has already been upheld in Balothia (supra) and
Manju Devi versus Onkarjit Singh Ahluwalia
21
. He also
relied upon Statement of Objects and Reasons of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities)
Amendment Bill, 2013 dated 14th July, 2014. Therein it is stated
that there are procedural hurdles such as non-registration of
cases, procedural delays in investigation, arrests and filing of
charge-sheets and delays in trial and low conviction rate on
account of which in spite of deterrent provisions, atrocities
against SC/ST continues at disturbing level which necessitated
amendment in the Act.
29. Further intervention has been sought by one Yogendra
Mohan Harsh. Learned counsel for the said intervenor submitted
that atrocities against SCs and STs are increasing and if
submissions of amicus are to be accepted, the Act will be
rendered ineffective and teethless.
21 (2017) 13 SCC 439
31
Submissions of learned Additional Solicitor General
(ASG)
30. Learned ASG submitted that in view of decisions in Balothia
(supra) and Manju Devi (supra) there is no occasion to go into
the issue of validity of provisions of the Atrocities Act. He also
submitted that decisions of this Court in Vilas Pandurang
Pawar and Anr. versus State of Maharashtra and Ors.
22
and Shakuntla Devi versus Baljinder Singh
23 permit grant of
anticipatory bail if no prima facie case is made out. Thus, in
genuine cases anticipatory bail can be granted. He also
submitted that the Government of India had issued advisories on
3
rd February, 2005, 1st April, 2010 and 23rd May, 2016 and also
further amended the Atrocities Act vide Amendment Act No. 1 of
2016 which provides for creation of Special Courts as well as
Exclusive Special Courts. Referring to the data submitted by the
National Crime Records Bureau (NCRB) it was further submitted
that out of the total number of complaints investigated by the
police in the year 2015, both for the persons belonging to the SC
category and also belonging to the ST category, in almost 15-16%
22 (2012) 8 SCC 795
23 (2014) 15 SCC 521
32
cases, the competent police authorities had filed closure reports.
Out of the cases disposed of by the courts in 2015, more than
75% cases have resulted in acquittal/withdrawal or compounding
of the cases. It was submitted that certain complaints were
received alleging misuse of the Atrocities Act and a question was
also raised in Parliament as to what punishment should be given
against false cases. The reply given was that awarding
punishment to members of SCs and STs for false implication
would be against the spirit of the Act. A press statement dated
19th March, 2015 was issued by the Central Government to the
effect that in case of false cases, relevant Sections of IPC can be
invoked. It was submitted that no guideline should be laid down
by this Court which may be legislative in nature.
Consideration of the issue whether directions can be
issued by this Court to protect fundamental right under
Article 21 against uncalled for false implication and
arrests
31. We may, at the outset, observe that jurisdiction of this Court
to issue appropriate orders or directions for enforcement of
fundamental rights is a basic feature of the Constitution. This
Court, as the ultimate interpreter of the Constitution, has to
33
uphold the constitutional rights and values. Articles 14, 19 and
21 represent the foundational values which form the basis of the
rule of law. Contents of the said rights have to be interpreted in a
manner which enables the citizens to enjoy the said rights. Right
to equality and life and liberty have to be protected against any
unreasonable procedure, even if it is enacted by the legislature.
The substantive as well as procedural laws must conform to
Articles 14 and 21. Any abrogation of the said rights has to be
nullified by this Court by appropriate orders or directions. Power
of the legislature has to be exercised consistent with the
fundamental rights. Enforcement of a legislation has also to be
consistent with the fundamental rights. Undoubtedly, this Court
has jurisdiction to enforce the fundamental rights of life and
liberty against any executive or legislative action. The expression
‘procedure established by law’ under Article 21 implies just, fair
and reasonable procedure24
.
32. This Court is not expected to adopt a passive or negative
role and remain bystander or a spectator if violation of rights is
24 Maneka Gandhi vs. UOI (1978) 1 SCC 248, paras 82 to 85
34
observed. It is necessary to fashion new tools and strategies so
as to check injustice and violation of fundamental rights. No
procedural technicality can stand in the way of enforcement of
fundamental rights25. There are enumerable decisions of this
Court where this approach has been adopted and directions
issued with a view to enforce fundamental rights which may
sometimes be perceived as legislative in nature. Such directions
can certainly be issued and continued till an appropriate
legislation is enacted26. Role of this Court travels beyond merely
dispute settling and directions can certainly be issued which are
not directly in conflict with a valid statute27. Power to declare law
carries with it, within the limits of duty, to make law when none
exists28
.
33. Constitution Bench of this Court in Union of India versus
Raghubir Singh
29
, observed :
“7. … It used to be disputed that Judges make law.
Today, it is no longer a matter of doubt that a
25 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13
26 Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey v.
UOI (1983) 2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N.
(1996) 6 SCC 756
27 Supreme Court Bar Asson. V. UOI (1998) 4 SCC 409, para 48
28 Dayaram vs. Sudhir Batham (2012) 1 SCC 333, para 18
29 (1989(2) SCC 754
35
substantial volume of the law governing the lives of
citizens and regulating the functions of the State flows
from the decisions of the superior Courts. "There was
a time," observed Lord Reid, "When it was thought
almost indecent to suggest that Judges make law -
They only declare it.... But we do not believe in fairly
tales any more." "The Judge as Law Maker", p. 22. In
countries such as the United Kingdom, where
Parliament as the legislative organ is supreme and
stands at the apex of the constitutional structure of
the State, the role played by judicial law-making is
limited.
In the first place the function of the Courts is restricted
to the interpretation of laws made by Parliament, and
the Courts have no power to question the validity of
Parliamentary statutes, the Diceyan dictum holding
true that the British Parliament is paramount and all
powerful. In the second place, the law enunciated in
every decision of the Courts in England can be
superseded by an Act of Parliament. As Cockburn C.J.
observed in Exp. Canon Selwyn (1872) 36 JP Jo 54:
There is no judicial body in the country by which the
validity of an Act of Parliament could be questioned.
An act of the Legislature is superior in authority to any
Court of Law.
And Ungoed Thomas J., in Cheney v. Conn, (1968) 1 All
ER 779 referred to a Parliamentary statute as "the
highest form of law...which prevails over every other
form of law." The position is substantially different
under a written Constitution such as the one which
governs us. The Constitution of India, which
represents the Supreme Law of the land, envisages
three distinct organs of the State, each with its own
distinctive functions, each a pillar of the State.
Broadly, while Parliament and the State Legislature fin
India enact the law and the Executive Government
implements it, the judiciary sits in judgment not only
on the implementation of the law by the Executive but
also on the validity of the Legislation sought to be
36
implemented One of the functions of the superior
judiciary in India is to examine the competence and
validity of legislation, both in point of legislative
competence as well as its consistency with the
Fundamental Rights. In this regard, the Courts in India
possess a power not known to the English Courts.
Where a statute is declared invalid in India it cannot
be reinstated unless constitutional sanction is
obtained therefore by a constitutional amendment of
an appropriately modified version of the statute is
enacted which accords with constitutional
prescription.
The range of judicial, review recognised in the superior
judiciary of India is perhaps the widest and the most
extensive known to the world of law.
The power extends to examining the validity of even
an amendment to the Constitution, for now it has
been repeatedly held that no constitutional
amendment can be sustained which [violates the
basic structure of the Constitution. See Kesavananda
Bharati Sripadagalayaru v. State of Kerala
AIR1973SC1461), Smt. Indira Nehru. Gandhi v. Raj
Narain [1976]2SCR347], Minerva Mills Ltd. v. Union of
India [1981]1SCR206] and recently in S. P. Sampath
Kumar v. Union of India [(1987)ILLJ128SC]. With this
impressive expanse of judicial power, it is only right
that the superior Courts in India should be conscious
of the enormous responsibility which rests on them.
This is specially true of the Supreme Court, for as the
highest Court in the entire judicial system the law
declared by it is, by Article 141 of the Constitution,
binding on« all Courts within the territory of India.”
34. The law has been summed up in a decision in Rajesh
Kumar versus State
30 as follows:
30 (2011) 13 SCC 706
37
“62. Until the decision was rendered in Maneka Gandhi
(supra), Article 21 was viewed by this Court as rarely
embodying the Diceyian concept of rule of law that no
one can be deprived of his personal liberty by an
executive action unsupported by law. If there was a
law which provided some sort of a procedure it was
enough to deprive a person of his life or personal
liberty. In this connection, if we refer to the example
given by Justice S.R. Das in his judgment in A.K.
Gopalan (supra) that if the law provided the Bishop of
Rochester 'be boiled in oil' it would be valid under
Article 21. But after the decision in Maneka Gandhi
(supra) which marks a watershed in the development
of constitutional law in our country, this Court, for the
first time, took the view that Article 21 affords
protection not only against the executive action but
also against the legislation which deprives a person of
his life and personal liberty unless the law for
deprivation is reasonable, just and fair. and it was held
that the concept of reasonableness runs like a golden
thread through the entire fabric of the Constitution
and it is not enough for the law to provide some
semblance of a procedure. The procedure for
depriving a person of his life and personal liberty must
be eminently just, reasonable and fair and if
challenged before the Court it is for the Court to
determine whether such procedure is reasonable, just
and fair and if the Court finds that it is not so, the
Court will strike down the same.”
35. Apart from the above, there are enumerable occasions when
this Court has issued directions for enforcement of fundamental
rights e.g., directions regarding functioning of caste scrutiny
Committee31; directions to regulate appointment of law officers32;
31 Madhuri Patil v. Tribal Development (1994) 6 SCC 241
32 State of Punjab versus Brijeshwar Singh Chahal (2016) 1 SCC 1
38
directions to regulate powers of this Court and High Courts in
designating Senior Advocates33; guidelines have been issued for
the welfare of a child accompanying his/her mother in
imprisonment34; directions for checking trafficking of women and
children35; for night shelters for the homeless36; directions to
check malnutrition in children37; directions to provide medical
assistance by Government run hospitals38; directions for
protection of human rights of prisoners39; directions for speedy
trial of under trials40. The list goes on.
36. Issuance of directions to regulate the power of arrest has
also been the subject matter of decisions of this Court. In
Joginder Kumar versus State of U.P.
41
, this Court observed
that horizon of human rights is expanding. There are complaints
of violation of human rights because of indiscriminate arrests.
The law of arrest is of balancing individual rights, liberties and
privileges, duties, obligations and responsibilities. On the one
33 Indira Jaising versus Supreme Court of India (2017) 9 SCC 766
34 R.D. Upadhyay versus State of A.P. (2007) 15 SCC 337
35 Bachpan Bachao Andolan v. UOI (2011) 5 SCC 1
36 Union for Civil Liberties versus UOI (2010)5 SCC 318
37 People’s Union for Civil Liberties versus UOI (2004) 12 SCC 104 and (2010) 15 SCC 57
38 Paschim Banga Khet Mazdoor Samity versus State of W.B. (1996) 4 SCC 37
39Sunil Batra versus Delhi Admn. (1978) 4 SCC 494
40Hussainara Khatoon (IV) versus Home Secy. State of Bihar (1980) 1 SCC 98
41 (1994) 4 SCC 260
39
side is the social need to check a crime, on the other there is
social need for protection of liberty, oppression and abuse by the
police and the other law enforcing agencies. This Court noted the
3
rd Report of the National Police Commission to the effect that
power of arrest was one of the chief sources of corruption of
police. 60% of arrests were unnecessary or unjustified. The
arrest could be unjustified only in grave offences to inspire the
confidence of the victim, to check the accused from committing
further crime and to prevent him from absconding. The National
Police Commission recommended that the police officer making
arrest should record reasons. This Court observed that no arrest
can be made merely because it is lawful to do so. The exercise of
power must be for a valid purpose. Except in heinous offences
arrest must be avoided. This requirement was read into Article
2142
. In Arnesh Kumar versus State of Bihar
43
, this Court
observed that arrest brings humiliation, curtails freedom and
casts scars forever. It is considered a tool for harassment and
oppression. The drastic power is to be exercised with caution.
Power of arrest is a lucrative source of corruption. Referring to
42 Para 21
43 (2014) 8 SCC 273
40
the amendment of law in Section 41 Cr.P.C., in the light of
recommendations of the Law Commissions, it was directed that
arrest may be justified only if there is ‘credible information’ or
‘reasonable suspicion’ and if arrest was necessary to prevent
further offence or for proper investigation or to check interference
with the evidence. Reasons are required to be recorded.
However, compliance on the ground is far from satisfactory for
obvious reasons. The scrutiny by the Magistrates is also not
adequate. This Court issued the following directions:
“11. Our endeavour in this judgment is to ensure
that police officers do not arrest the accused
unnecessarily and Magistrate do not authorise
detention casually and mechanically. In order to
ensure what we have observed above, we give the
following directions:
11.1. All the State Governments to instruct its police
officers not to automatically arrest when a case under
Section 498-A IPC is registered but to satisfy
themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41
CrPC;
11.2. All police officers be provided with a check list
containing specified sub-clauses under Section 41(1)
(b)(ii);
11.3. The police officer shall forward the check list
duly filled and furnish the reasons and materials
which necessitated the arrest, while
41
forwarding/producing the accused before the
Magistrate for further detention;
11.4. The Magistrate while authorising detention of
the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorise
detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from
the date of the institution of the case with a copy to
the Magistrate which may be extended by the
Superintendent of Police of the district for the reasons
to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A
CrPC be served on the accused within two weeks from
the date of institution of the case, which may be
extended by the Superintendent of Police of the
district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers
concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to
be instituted before the High Court having territorial
jurisdiction.
11.8. Authorising detention without recording
reasons as aforesaid by the Judicial Magistrate
concerned shall be liable for departmental action by
the appropriate High Court.”
37. In D.K. Basu versus State of W.B.
44, this Court, to check
abuse of arrest and drastic police power, directed as follows:
44 (1997) 1 SCC 416
42
“35. We, therefore, consider it appropriate to issue
the following requirements to be followed in all cases
of arrest or detention till legal provisions are made in
that behalf as preventive measures:
(1) The police personnel carrying out the arrest
and handling the interrogation of the arrestee should
bear accurate, visible and clear identification and
name tags with their designations. The particulars of
all such police personnel who handle interrogation of
the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of
the arrestee shall prepare a memo of arrest at the
time of arrest and such memo shall be attested by at
least one witness, who may either be a member of
the family of the arrestee or a respectable person
of the locality from where the arrest is made. It shall
also be countersigned by the arrestee and shall
contain the time and date of arrest.
(3) A person who has been arrested or detained
and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled
to have one friend or relative or other person known
to him or having interest in his welfare being
informed, as soon as practicable, that he has been
arrested and is being detained at the particular place,
unless the attesting witness of the memo of arrest is
himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody
of an arrestee must be notified by the police where
the next friend or relative of the arrestee lives outside
the district or town through the Legal Aid
Organisation in the District and the police station of
the area concerned telegraphically within a period of
8 to 12 hours after the arrest.
(5) The person arrested must be made aware of
this right to have someone informed of his arrest or
detention as soon as he is put under arrest or is
detained.
(6) An entry must be made in the diary at the
place of detention regarding the arrest of the person
which shall also disclose the name of the next friend
43
of the person who has been informed of the arrest
and the names and particulars of the police officials
in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be
also examined at the time of his arrest and major and
minor injuries, if any present on his/her body, must be
recorded at that time. The “Inspection Memo” must
be signed both by the arrestee and the police officer
effecting the arrest and its copy provided to the
arrestee.
(8) The arrestee should be subjected to medical
examination by a trained doctor every 48 hours
during his detention in custody by a doctor on the
panel of approved doctors appointed by Director,
Health Services of the State or Union Territory
concerned. Director, Health Services should prepare
such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the
memo of arrest, referred to above, should be sent to
the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his
lawyer during interrogation, though not throughout
the interrogation.
(11) A police control room should be provided at all
district and State headquarters, where information
regarding the arrest and the place of custody of the
arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the
arrest and at the police control room it should be
displayed on a conspicuous notice board.
36. Failure to comply with the requirements
hereinabove mentioned shall apart from rendering
the official concerned liable for departmental action,
also render him liable to be punished for contempt of
court and the proceedings for contempt of court may
be instituted in any High Court of the country, having
territorial jurisdiction over the matter.
37. The requirements, referred to above flow from
Articles 21 and 22(1) of the Constitution and need to
be strictly followed. These would apply with equal
44
force to the other governmental agencies also to
which a reference has been made earlier.”
38. In Rini Johar (supra) this Court considered the issue of
wrongful arrest and payment of compensation. It was observed
that wrongful arrest violates Article 21 of the Constitution and
thus the victim of arrest was entitled to compensation. This Court
noted the observations and guidelines laid down against wrongful
arrests in Joginder Kumar (supra), D.K. Basu (supra), Arnesh
Kumar (supra) and other cases and held that since the arrest is
in violation of guidelines laid down by this Court and is violative of
Article 21, the person arrested was entitled to compensation.
39. In Subramanian Swamy versus UOI
45
, this Court
considered the issue of validity of provisions creating defamation
as an offence. In the course of said judgment, need for harmony
in competing claims of different interests was considered. This
Court observed that the fundamental rights are all parts of an
integrated scheme and their waters must mix to constitute grand
flow of impartial justice46. This Court also observed that
45 (2016) 7 SCC 221
46 Para 137
45
legislation should not invade the rights and should not smack of
arbitrariness. Considering the principles of reasonableness, this
Court observed that ultimate impact of rights has to be
determined. This was different from abuse or misuse of
legislation. Proportionality of restraint has to be kept in mind
while determining constitutionality. Concept of public interest and
social interest determine the needs of the society47. After
referring to Maneka Gandhi (supra), it was observed that it is
the duty of this Court to strike a balance in the right of speech
and right to protect reputation48. The restriction of law should be
rational and connected to the purpose for which it is necessary. It
should not be arbitrary or excessive49
.
40. Again this Court in Siddharam Satlingappa Mhetre
versus State of Maharashtra
50
laid down parameters for
exercise of discretion of anticipatory bail having regard to the
fundamental right of liberty under Article 21 of the Constitution
and the needs of the society where such liberty may be required
to be taken away. It was observed:
47 Para 130
48 Para 144
49 Para 194 and 195
50 (2011) 1 SCC 694
46
“Relevance and importance of personal liberty
36. All human beings are born with some unalienable rights
like life, liberty and pursuit of happiness. The importance of
these natural rights can be found in the fact that these are
fundamental for their proper existence and no other right can
be enjoyed without the presence of right to life and liberty.
Life bereft of liberty would be without honour and dignity and
it would lose all significance and meaning and the life itself
would not be worth living. That is why “liberty” is called the
very quintessence of a civilised existence. …
52. The fundamental rights represent the basic values
enriched by the people of this country. The aim behind having
elementary right of the individual such as the Right to Life
and Liberty is not fulfilled as desired by the Framers of the
Constitution. It is to preserve and protect certain basic human
rights against interference by the State. The inclusion of a
chapter in the Constitution is in accordance with the trends of
modern democratic thought. The object is to ensure the
inviolability of certain essential rights against political
vicissitudes. …
54. Life and personal liberty are the most prized possessions
of an individual. The inner urge for freedom is a natural
phenomenon of every human being. Respect for life, liberty
and property is not merely a norm or a policy of the State but
an essential requirement of any civilised society.
64. The object of Article 21 is to prevent encroachment upon
personal liberty in any manner. Article 21 is repository of all
human rights essential for a person or a citizen. A fruitful and
meaningful life presupposes life full of dignity, honour, health
and welfare. In the modern “Welfare Philosophy”, it is for the
State to ensure these essentials of life to all its citizens, and if
possible to non-citizens. While invoking the provisions of
Article 21, and by referring to the oftquoted statement of
Joseph Addison, “Better to die ten thousand deaths than
wound my honour”, the Apex Court in Khedat Mazdoor Chetna
Sangath v. State of M.P. (1994) 6 SCC 260 posed to itself a
question “If dignity or honour vanishes what remains of life?”
This is the significance of the Right to Life and Personal
Liberty guaranteed under the Constitution of India in its Third
Part. …
47
International Charters
Universal Declaration of Human Rights, 1948
80. Article 3 of the Universal Declaration says:
“3. Everyone has the right to life, liberty and security of
person.”
Article 9 provides:
“9. No one shall be subjected to arbitrary arrest, detention
or exile.”
Article 10 says:
“10. Everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any
criminal charge against him.” [As to its legal effect, see M.
v. United Nations & Belgium (1972) 45 Inter LR 446 (Inter
LR at pp. 447, 451.)]
86. According to the Report of the National Police
Commission, when the power of arrest is grossly abused
and clearly violates the personal liberty of the people, as
enshrined under Article 21 of the Constitution, then the
courts need to take serious notice of it. When conviction
rate is admittedly less than 10%, then the police should be
slow in arresting the accused. The courts considering the
bail application should try to maintain fine balance
between the societal interest vis-à-vis personal liberty
while adhering to the fundamental principle of criminal
jurisprudence that the accused is presumed to be innocent
till he is found guilty by the competent court.
87. The complaint filed against the accused needs to be
thoroughly examined including the aspect whether the
complainant has filed a false or frivolous complaint on
earlier occasion. The court should also examine the fact
whether there is any family dispute between the accused
and the complainant and the complainant must be clearly
told that if the complaint is found to be false or frivolous,
then strict action will be taken against him in accordance
with law. If the connivance between the complainant and
the investigating officer is established then action be taken
against the investigating officer in accordance with law.
48
88. The gravity of charge and the exact role of the
accused must be properly comprehended. Before arrest,
the arresting officer must record the valid reasons which
have led to the arrest of the accused in the case diary. In
exceptional cases the reasons could be recorded
immediately after the arrest, so that while dealing with the
bail application, the remarks and observations of the
arresting officer can also be properly evaluated by the
court.
89. It is imperative for the courts to carefully and with
meticulous precision evaluate the facts of the case. The
discretion must be exercised on the basis of the available
material and the facts of the particular case. In cases
where the court is of the considered view that the accused
has joined investigation and he is fully cooperating with
the investigating agency and is not likely to abscond, in
that event, custodial interrogation should be avoided.
90. A great ignominy, humiliation and disgrace is attached
to the arrest. Arrest leads to many serious consequences
not only for the accused but for the entire family and at
times for the entire community. Most people do not make
any distinction between arrest at a pre-conviction stage or
post-conviction stage.
110. The Law Commission in July 2002 has severely
criticised the police of our country for the arbitrary use of
power of arrest which, the Commission said, is the result of
the vast discretionary powers conferred upon them by this
Code. The Commission expressed concern that there is no
internal mechanism within the Police Department to
prevent misuse of law in this manner and the stark reality
that complaint lodged in this regard does not bring any
result. The Commission intends to suggest amendments in
the Criminal Procedure Code and has invited suggestions
from various quarters. Reference is made in this article to
the 41st Report of the Law Commission wherein the
Commission saw “no justification” to require a person to
submit to custody, remain in prison for some days and
then apply for bail even when there are reasonable
grounds for holding that the person accused of an offence
is not likely to abscond or otherwise misuse his liberty.
Discretionary power to order anticipatory bail is required to
be exercised keeping in mind these sentiments and spirit
49
of the judgments of this Court in Sibbia case (1980)2 SCC
565 and Joginder Kumar v. State of U.P.(1994)4 SCC 260.
112. The following factors and parameters can be taken
into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the
exact role of the accused must be properly comprehended
before arrest is made;
(ii) The antecedents of the applicant including the fact
as to whether the accused has previously undergone
imprisonment on conviction by a court in respect of any
cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused’s likelihood to repeat
similar or other offences;
(v) Where the accusations have been made only with
the object of injuring or humiliating the applicant by
arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large number of
people;
(vii) The courts must evaluate the entire available
material against the accused very carefully. The court must
also clearly comprehend the exact role of the accused in
the case. The cases in which the accused is implicated with
the help of Sections 34 and 149 of the Penal Code, 1860
the court should consider with even greater care and
caution because overimplication in the cases is a matter of
common knowledge and concern;
(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between two
factors, namely, no prejudice should be caused to the free,
fair and full investigation and there should be prevention of
harassment, humiliation and unjustified detention of the
accused;
(ix) The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
(x) Frivolity in prosecution should always be considered
and it is only the element of genuineness that shall have to
be considered in the matter of grant of bail and in the
event of there being some doubt as to the genuineness of
the prosecution, in the normal course of events, the
accused is entitled to an order of bail.
50
113. Arrest should be the last option and it should be
restricted to those exceptional cases where arresting the
accused is imperative in the facts and circumstances of that
case. The court must carefully examine the entire available
record and particularly the allegations which have been
directly attributed to the accused and these allegations are
corroborated by other material and circumstances on record.
114. These are some of the factors which should be taken
into consideration while deciding the anticipatory bail
applications. These factors are by no means exhaustive but
they are only illustrative in nature because it is difficult to
clearly visualise all situations and circumstances in which a
person may pray for anticipatory bail. If a wise discretion is
exercised by the Judge concerned, after consideration of the
entire material on record then most of the grievances in
favour of grant of or refusal of bail will be taken care of. The
legislature in its wisdom has entrusted the power to exercise
this jurisdiction only to the Judges of the superior courts. In
consonance with the legislative intention we should accept
the fact that the discretion would be properly exercised. In
any event, the option of approaching the superior court
against the Court of Session or the High Court is always
available.
Irrational and indiscriminate arrests are gross violation
of human rights
115. In Joginder Kumar case (supra) a three-Judge Bench
of this Court has referred to the 3rd Report of the National
Police Commission, in which it is mentioned that the quality of
arrests by the police in India mentioned the power of arrest as
one of the chief sources of corruption in the police. The Report
suggested that, by and large, nearly 60% of the arrests were
either unnecessary or unjustified and that such unjustified
police action accounted for 43.2% of the expenditure of the
jails.
116. Personal liberty is a very precious fundamental right and
it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the case.
117. In case, the State considers the following suggestions in
proper perspective then perhaps it may not be necessary to
51
curtail the personal liberty of the accused in a routine
manner. These suggestions are only illustrative and not
exhaustive:
(1) Direct the accused to join the investigation and only
when the accused does not cooperate with the
investigating agency, then only the accused be arrested.
(2) Seize either the passport or such other related
documents, such as, the title deeds of properties or the
fixed deposit receipts/share certificates of the accused.
(3) Direct the accused to execute bonds.
(4) The accused may be directed to furnish sureties of a
number of persons which according to the prosecution are
necessary in view of the facts of the particular case.
(5) The accused be directed to furnish undertaking that
he would not visit the place where the witnesses reside so
that the possibility of tampering of evidence or otherwise
influencing the course of justice can be avoided.
(6) Bank accounts be frozen for small duration during
the investigation.
118. In case the arrest is imperative, according to the facts of
the case, in that event, the arresting officer must clearly
record the reasons for the arrest of the accused before the
arrest in the case diary, but in exceptional cases where it
becomes imperative to arrest the accused immediately, the
reasons be recorded in the case diary immediately after the
arrest is made without loss of any time so that the court has
an opportunity to properly consider the case for grant or
refusal of bail in the light of reasons recorded by the arresting
officer.
119. Exercise of jurisdiction under Section 438 CrPC is an
extremely important judicial function of a Judge and must be
entrusted to judicial officers with some experience and good
track record. Both the individual and society have vital
interest in orders passed by the courts in anticipatory bail
applications.
120. It is imperative for the High Courts through its judicial
academies to periodically organise workshops, symposiums,
52
seminars and lectures by the experts to sensitise judicial
officers, police officers and investigating officers so that they
can properly comprehend the importance of personal liberty
vis-à-vis social interests. They must learn to maintain fine
balance between the personal liberty and the social interests”
41. It is, thus, too late in the day to accept an objection that this
Court may not issue any direction which may be perceived to be
of legislative nature even if it is necessary to enforce fundamental
rights under Articles 14 and 21 of the Constitution.
Further consideration of potential impact of working of
Atrocities Act on spreading casteism
42. In the light of submissions made, it is necessary to express
concern that working of the Atrocities Act should not result in
perpetuating casteism which can have an adverse impact on
integration of the society and the constitutional values. Such
concern has also been expressed by this Court on several
occasions. Secularism is a basic feature of the Constitution.
Irrespective of caste or religion, the Constitution guarantees
equality in its preamble as well as other provisions including
Articles 14-16. The Constitution envisages a cohesive, unified
and casteless society.
53
43. Dr. B.R. Ambedkar, in his famous speech on 25th November,
1949, on conclusion of deliberations of the Constituent Assembly,
stated :
“These principles of liberty, equality and fraternity
are not to be treated as separate items in a trinity.
They form a union of trinity in the sense that to
divorce one from the other is to defeat the very
purpose of democracy. Liberty cannot be divorced
from equality, equality cannot be divorced from
liberty. Nor can liberty and equality be divorced from
fraternity. Without equality, liberty would produce the
supremacy of the few over the many. Equality
without liberty would kill individual initiative. Without
fraternity, liberty and equality could not become a
natural course of things. It would require a constable
to enforce them. …. …
… … … … … …
In India there are castes. The castes are antinational.
In the first place because they bring about
separation in social life. They are anti-national also
because they generate jealousy and antipathy
between caste and caste. But we must overcome all
these difficulties if we wish to become a nation in
reality. For fraternity can be a fact only when there is
a nation. Without fraternity, equality and liberty will
be no deeper than coats of paint.”
44. In Indra Sawhney and Ors versus Union of India and
Ors.
51
this Court observed:
“339. Secularism is the basic feature of the Indian
Constitution. It envisages a cohesive, unified and
51 1992 Supp(3) SCC 217
54
casteless society. The Constitution has completely
obliterated the caste system and has assured equality
before law. Reference to caste under Articles 15(2)
and 16(2) is only to obliterate it. The prohibition on
the ground of caste is total, the mandate is that never
again in this country caste shall raise its head. Even
access to shops on the ground of caste is prohibited.
The progress of India has been from casteism to
egalitarianism — from feudalism to freedom.
340. The caste system which has been put in the
grave by the framers of the Constitution is trying to
raise its ugly head in various forms. Caste poses a
serious threat to the secularism and as a consequence
to the integrity of the country. Those who do not learn
from the events of history are doomed to suffer again.
It is, therefore, of utmost importance for the people of
India to adhere in letter and spirit to the Constitution
which has moulded this country into a sovereign,
socialist, secular democratic republic and has
promised to secure to all its citizens justice, social,
economic and political, equality of status and of
opportunity.”
45. In the Report of the National Commission to Review the
Working of the Constitution one of the failures of the working of
the Constitution noted was that the elections continued to be
fought on caste lines. The said observations have been quoted in
People’s Union for Civil Liberties (PUCL) and Anr. Etc.
versus Union of India and Anr.
52
as follows:
“20. It is to be stated that similar views are expressed in
the Report submitted in March 2002 by the National
52 (2003)4 SCC 399
55
Commission to Review the Working of the Constitution
appointed by the Union Government for reviewing the
working of the Constitution. Relevant recommendations
are as under:
“Successes and failures
4.4. During the last half-a-century, there have
been thirteen general elections to the Lok
Sabha and a much large number to various
State Legislative Assemblies. We can take
legitimate pride in that these have been
successful and generally acknowledged to be
free and fair. But, the experience has also
brought to the fore many distortions, some
very serious, generating a deep concern in
many quarters. There are constant
references to the unhealthy role of
money power, muscle power and mafia
power and to criminalisation, corruption,
communalism and casteism.”
46. The speech of the then Prime Minister Shri Atal Behari
Vajpayee on this aspect was also noted in para 48 of the above
judgment which is as follows:
“Mr Divan in course of his arguments, had raised some
submissions on the subject — ‘Criminalisation of Politics’
and participation of criminals in the electoral process as
candidates and in that connection, he had brought to our
notice the order of the Election Commission of India dated
28-8-1997. … — ‘Whither Accountability’, published in The
Pioneer, Shri Atal Behari Vajpayee had called for a national
debate on all the possible alternatives for systematic
changes to cleanse our democratic governing system of its
present mess. He has expressed his dissatisfaction that
neither Parliament nor the State Vidhan Sabhas are doing,
with any degree of competence or commitment, what they
are primarily meant to do: legislative function. According to
him, barring exceptions, those who get elected to these
democratic institutions are neither trained, formally or
informally, in law-making nor do they seem to have an
inclination to develop the necessary knowledge and
56
competence in their profession. He has further indicated
that those individuals in society who are generally
interested in serving the electorate and performing
legislative functions are finding it increasingly difficult to
succeed in today’s electoral system and the electoral
system has been almost totally subverted by money
power, muscle power, and vote bank considerations
of castes and communities. Shri Vajpayee also had
indicated that the corruption in the governing structures
has, therefore, corroded the very core of elective
democracy. According to him, the certainty of scope of
corruption in the governing structure has heightened
opportunism and unscrupulousness among political
parties, causing them to marry and divorce one another at
will, seek opportunistic alliances and coalitions often
without the popular mandate. Yet they capture and survive
in power due to inherent systematic flows. He further
stated that casteism, corruption and politicisation
have eroded the integrity and efficacy of our civil
service structure also. The manifestos, policies,
programmes of the political parties have lost
meaning in the present system of governance due
to lack of accountability.”
47. We are thus of the view that interpretation of the Atrocities
Act should promote constitutional values of fraternity and
integration of the society. This may require check on false
implications of innocent citizens on caste lines.
Issue of anticipatory bail
48. In the light of the above, we first consider the question
whether there is an absolute bar to the grant of anticipatory bail
in which case the contention for revisiting the validity of the said
57
provision may need consideration in the light of decisions of this
Court relied upon by learned amicus.
49. Section 18 of the Atrocities Act containing bar against grant
of anticipatory bail is as follows:
“Section 438 of the Code not to apply to persons
committing an offence under the Act. – Nothing in
Section 438 of the Code shall apply in relation to any
case involving the arrest of any person on an
accusation of having committed an offence under this
Act.”
50. In Balothia (supra), Section 18 was held not to be violative
of Articles 14 and 21 of the Constitution. It was observed that
exclusion of Section 438 Cr.P.C. in connection with offences under
the Act had to be viewed in the context of prevailing social
conditions and the apprehension that perpetrators of such
atrocities are likely to threaten and intimidate the victims and
prevent or obstruct them in the prosecution of these offenders, if
they are granted anticipatory bail. Referring to the Statement of
Objects and Reasons, it was observed that members of SC and ST
are vulnerable and are denied number of civil rights and they are
subjected to humiliation and harassment. They assert their rights
58
and demand statutory protection. Vested interests try to cow
them down and terrorise them. There was increase in disturbing
trend of commission of atrocities against members of SC and ST.
Thus, the persons who are alleged to have committed such
offences can misuse their liberty, if anticipatory bail is granted.
They can terrorise the victims and prevent investigation.
51. Though we find merit in the submission of learned amicus
that judgment of this Court in Ram Krishna Balothia (supra)
may need to be revisited in view of judgments of this Court,
particularly Maneka Gandhi (supra), we consider it unnecessary
to refer the matter to the larger Bench as the judgment can be
clarified in the light of law laid down by this Court. Exclusion of
anticipatory bail has been justified only to protect victims of
perpetrators of crime. It cannot be read as being applicable to
those who are falsely implicated for extraneous reasons and have
not committed the offence on prima facie independent scrutiny.
Access to justice being a fundamental right, grain has to be
separated from the chaff, by an independent mechanism. Liberty
of one citizen cannot be placed at the whim of another. Law has
59
to protect the innocent and punish the guilty. Thus considered,
exclusion has to be applied to genuine cases and not to false
ones. This will help in achieving the object of the law.
52. If the provisions of the Act are compared as against certain
other enactments where similar restrictions are put on
consideration of matter for grant of anticipatory bail or grant of
regular bail, an interesting situation emerges. Section 17(4) of
the Terrorist and Disruptive Activities (Prevention) Act, 1985
(“TADA” for short - since repealed) stated “…nothing in Section
438 of the Code shall apply in relation to any case involving the
arrest of any person on an accusation of having committed an
offence punishable under the provisions of this Act…”. Section
17(5) of the TADA Act put further restriction on a person accused
of an offence punishable under the TADA Act being released on
regular bail and one of the conditions was: Where the Public
Prosecutor opposes the application for grant of bail, the court had
to be satisfied that there were reasonable grounds for believing
that the accused was not guilty of such offence and that he was
not likely to commit any such offence while on bail. The
60
provisions of the Unlawful Activities (Prevention) Act, 1967 (for
short “the UAPA Act”), namely under Section 43D(4) and 43D(5)
are similar to the aforesaid Sections 17(4) and 17(5) of the TADA
Act. Similarly the provisions of Maharashtra Control of Organised
Crime Act, 1999 (for short “MCOC Act”), namely, Sections 21(3)
and 21(4) are also identical in terms. Thus the impact of release
of a person accused of having committed the concerned offences
under these special enactments was dealt with by the Legislature
not only at the stage of consideration of the matter for
anticipatory bail but even after the arrest at the stage of grant of
regular bail as well. The provisions of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short “the NDPS Act) are,
however, distinct in that the restriction under Section 37 is at a
stage where the matter is considered for grant of regular bail. No
such restriction is thought of and put in place at the stage of
consideration of matter for grant of anticipatory bail. On the
other hand, the provisions of the Act are diametrically opposite
and the restriction in Section 18 is only at the stage of
consideration of matter for anticipatory bail and no such
restriction is available while the matter is to be considered for
61
grant of regular bail. Theoretically it is possible to say that an
application under Section 438 of the Code may be rejected by the
Court because of express restrictions in Section 18 of the Act but
the very same court can grant bail under the provisions of Section
437 of the Code, immediately after the arrest. There seems to be
no logical rationale behind this situation of putting a fetter on
grant of anticipatory bail whereas there is no such prohibition in
any way for grant of regular bail. It is, therefore, all the more
necessary and important that the express exclusion under Section
18 of the Act is limited to genuine cases and inapplicable where
no prima facie case is made out.
53. We have no quarrel with the proposition laid down in the said
judgment that persons committing offences under the Atrocities
Act ought not to be granted anticipatory bail in the same manner
in which the anticipatory bail is granted in other cases punishable
with similar sentence. Still, the question remains whether in
cases where there is no prima facie case under the Act, bar under
Section 18 operates can be considered. We are unable to read
the said judgment as laying down that exclusion is applicable to
62
such situations. If a person is able to show that, prima facie, he
has not committed any atrocity against a member of SC and ST
and that the allegation was mala fide and prima facie false and
that prima facie no case was made out, we do not see any
justification for applying Section 18 in such cases. Consideration
in the mind of this Court in Balothia (supra) is that the
perpetrators of atrocities should not be granted anticipatory bail
so that they may not terrorise the victims. Consistent with this
view, it can certainly be said that innocent persons against whom
there was no prima facie case or patently false case cannot be
subjected to the same treatment as the persons who are prima
facie perpetrators of the crime.
54. In view of decisions in Vilas Pandurang Pawar (supra)
and Shakuntla Devi (supra), learned ASG has rightly stated
that there is no absolute bar to grant anticipatory bail if no prima
facie case is made out inspite of validity of Section 18 of the
Atrocities Act being upheld.
63
55. In Hema Mishra versus State of U.P.
53
, it has been
expressly laid down that inspite of the statutory bar against grant
of anticipatory bail, a Constitutional Court is not debarred from
exercising its jurisdiction to grant relief. This Court considered the
issue of anticipatory bail where such provision does not apply.
Reference was made to the view in Lal Kamlendra Pratap
Singh versus State of Uttar Pradesh and Ors.
54
to the
effect that interim bail can be granted even in such cases without
accused being actually arrested. Reference was also made to
Kartar Singh versus State of Punjab
55
to the effect that
jurisdiction under Article 226 is not barred even in such cases.
56. It is well settled that a statute is to be read in the context of
the background and its object. Instead of literal interpretation,
the court may, in the present context, prefer purposive
interpretation to achieve the object of law. Doctrine of
proportionality is well known for advancing the object of Articles
14 and 21. A procedural penal provision affecting liberty of
53 (2014) 4 SCC 453 – paras 21, 34 to 36
54 (2009) 4 SCC 437
55 (1994) 3 SCC 569 – para 368 (17)
64
citizen must be read consistent with the concept of fairness and
reasonableness.
57. A Constitution Bench of this Court in Kedar Nath versus
State of Bihar
56 observed:
“26. It is also well settled that in interpreting an
enactment the Court should have regard not merely
to the literal meaning of the words used, but also
take into consideration the antecedent history of
the legislation, its purpose and the mischief it seeks
to suppress [vide (1) Bengal Immunity Company
Limited v. State of Bihar[1955 2 SCR 603] and (2)
R.M.D. Chamarbaugwala v. Union of India[1957 SCR
930]. Viewed in that light, we have no hesitation in
so construing the provisions of the sections
impugned in these cases as to limit their application
to acts involving intention or tendency to create
disorder, or disturbance of law and order, or
incitement to violence.
27. We may also consider the legal position, as it
should emerge, assuming that the main Section
124-A is capable of being construed in the literal
sense in which the Judicial Committee of the Privy
Council has construed it in the cases referred to
above. On that assumption, is it not open to this Court to
construe the section in such a way as to avoid the alleged
unconstitutionality by limiting the application of the
section in the way in which the Federal Court intended to
apply it? In our opinion, there are decisions of this Court
which amply justify our taking that view of the legal
position. This Court, in the case of R.M.D.
Chamarbaugwalla v. Union of India has examined in detail
the several decisions of this Court, as also of the courts in
America and Australia. After examining those decisions,
this Court came to the conclusion that if the impugned
provisions of a law come within the constitutional powers
of the legislature by adopting one view of the words of the
56 AIR 1962 SC 955 : 1962 Supp (2) SCR 769
65
impugned section or Act, the Court will take that view of
the matter and limit its application accordingly, in
preference to the view which would make it
unconstitutional on another view of the interpretation of
the words in question. In that case, the Court had to
choose between a definition of the expression “Prize
Competitions” as limited to those competitions which were
of a gambling character and those which were not. The
Court chose the former interpretation which made the rest
of the provisions of the Act, Prize Competitions Act (42 of
1955), with particular reference to Sections 4 and 5 of the
Act and Rules 11 and 12 framed thereunder, valid. The
Court held that the penalty attached only to those
competitions which involved the element of gambling and
those competitions in which success depended to a
substantial degree on skill were held to be out of the
purview of the Act. The ratio decidendi in that case, in
our opinion, applied to the case in hand insofar as
we propose to limit its operation only to such
activities as come within the ambit of the
observations of the Federal Court, that is to say,
activities involving incitement to violence or
intention or tendency to create public disorder or
cause disturbance of public peace.”
58. In the present context, wisdom of legislature in creating an
offence cannot be questioned but individual justice is a judicial
function depending on facts. As a policy, anticipatory bail may be
excluded but exclusion cannot be intended to apply where a
patently malafide version is put forward. Courts have inherent
jurisdiction to do justice and this jurisdiction cannot be intended
to be excluded. Thus, exclusion of Court’s jurisdiction is not to be
read as absolute.
66
59. There can be no dispute with the proposition that mere
unilateral allegation by any individual belonging to any caste,
when such allegation is clearly motivated and false, cannot be
treated as enough to deprive a person of his liberty without an
independent scrutiny. Thus, exclusion of provision for anticipatory
bail cannot possibly, by any reasonable interpretation, be treated
as applicable when no case is made out or allegations are
patently false or motivated. If this interpretation is not taken, it
may be difficult for public servants to discharge their bona fide
functions and, in given cases, they can be black mailed with the
threat of a false case being registered under the Atrocities Act,
without any protection of law. This cannot be the scenario in a
civilized society. Similarly, even a non public servant can be black
mailed to surrender his civil rights. This is not the intention of
law. Such law cannot stand judicial scrutiny. It will fall foul of
guaranteed fundamental rights of fair and reasonable procedure
being followed if a person is deprived of life and liberty. Thus,
literal interpretation cannot be preferred in the present situation.
67
60. Applying the above well known principle, we hold that the
exclusion of Section 438 Cr.P.C. applies when a prima facie case of
commission of offence under the Atrocities Act is made. On the
other hand, if it can be shown that the allegations are prima facie
motivated and false, such exclusion will not apply.
61. The Gujarat High Court in Pankaj D Suthar (supra)
considered the question whether Section 18 of the Atrocities Act
excludes grant of anticipatory bail when on prima facie judicial
scrutiny, allegations are found to be not free from doubt. The said
question was answered as follows:
“4. Now undoubtedly it is true that the alleged
offence under the Atrocities Act is a very serious
offence and if indeed the complaint is ultimately
found to be truthful and genuine one, there cannot
be any two views about the strictest possible view
taken in such matter. Not only that but if the complaint
is also found to be prima facie dependable one that is to
say, free from doubt, then as a warranted under Section 18
of the Atrocities Act, even the anticipatory bail to such
accused has got to be refused. In fact, the Parliament in
its utmost wisdom has rightly evidenced great
concern and anxiety over the atrocities which are
going on unabatedly on S.Cs. & S.Ts. by inserting
the provisions under Section 18 of the Atrocities Act
disabling the accused from obtaining the
anticipatory bail under Section 438 of the Code. This
indeed is a welcome step and in accordance with the
axiomatic truth, viz., 'the disease grown desperately
must be treated desperately else not'. The disease of
commission of offences by way of atrocities against the
68
members of S.Cs. and S.Ts. are unabatedly going on since
last hundreds of years and in the recent past have become
alarmingly increasing and has become so rampant, breath
taking and has reached such a desperate pass that it
indeed needed a very stringent and desperate legislation
which could help save the situation by effectively providing
the legal protection to such cursed, crushed and
downtrodden members of S.Cs. & S.Ts. communities. Under
such circumstances, it is equally the paramount duty of
every Court to see that it responds to legislative concern
and call and ensure effective implementation of the
Atrocities Act, by seeing that the provisions enshrined in
the said Act are duly complied with. But then, what
according to this Court is the most welcome step by
way of collective wisdom of the Parliament in
ushering social beneficial legislation cannot be
permitted to be abused and converted into an
instrument to blackmail to wreak some personal
vengeance for settling and scoring personal
vendetta or by way of some counter-blasts against
opponents some public servants, as prima facie
appears to have been done in the present case. The
basic questions in such circumstances therefore areWhether
a torch which is lighted to dispel the
darkness can it be permitted to set on fire the
innocent surroundings? Whether a knife an
instrument which is meant for saving human life by
using the same in the course of operation by a
surgeon, can it be permitted to be used in taking
the life of some innocent? The very same fundamental
question arises in the facts and circumstances of this case
also, viz., 'whether any statute like the present Atrocities
Act, especially enacted for the purposes of protecting
weaker sections of the society hailing from S.C. & S.T.
communities can be permitted to be abused by
conveniently converting the same into a weapon of
wrecking personal vengeance on the opponents?' The
answer to this question is undoubtedly and
obviously 'No'. Under such circumstances, if the
Courts are to apply such provision of Section 18 of
the Atrocities Act quite mechanically and blindly
merely guided by some general and popular
prejudices based on some words and tricky
accusations in the complaint on mere assumptions
without intelligently scrutinising and testing the
probabilities, truthfulness, genuineness and
69
otherwise dependability of the accusations in the
complaint etc., then it would be simply unwittingly
and credulously playing in the hands of some
scheming unscrupulous complainant in denying the
justice. Virtually, it would be tentamount to abdicating
and relegating its judicial duty, fanction of doing justice in
such matters in favour and hands of such unscrupulous
complainant by making him a Judge in his own cause. This
is simply unthinkable and therefore impermissible.
Whether the provisions of any particular Act and for
that purpose the rules made thereunder are
applicable to the facts of a particular case or not, is
always and unquestionably a matter which lies
strictly and exclusively within the domain of 'judicial
consideration-discretion' and therefore neither mere
allegations made in the complainant by themselves
nor bare denials by the accused can either
automatically vest or divest the Court from
discharging its ultimate judicial function-duty to
closely scrutinise and test the prima facie
dependability of the allegations made in the
complaint and reach its own decision.
5. Now reverting to the contents of the complaint and
attending circumstances high lighted by Mr. Pardiwala, the
learned Advocate for the petitioner-accused, the same
prima facie clearly demonstrates that at this stage the
story revealed by the complainant docs not appear to be
free from doubt. If that is so, very applicability of the
Atrocities Act is rendered doubtful. If that is the situation,
then to refuse the anticipatory bail on mere accusations
and assumptions that the petitioner-accused has
committed an offence under the Atrocities Act would be
absolutely illegal, unjudicious, unjust and ultimately a
travesty of justice. No Court can ever embark upon such
hazards of refusing anticipatory bail on mere doubtful
accusations and assumptions that Atrocities Act is
applicable. No Court could and should be permitted to bo
'spoon-fed' by the complainant whatever he wants to feed
and swallow whatever he wants the Court to gulp down to
attain and secure his unjust mala fide motivated ends.
Section 18 of the Atrocities Act gives a vision,
direction and mandate to the Court as to the cases
where the anticipatory bail must be refused, but it
does not and it certainly cannot whisk away the
right of any Court to have a prima facie judicial
70
scrutiny of the allegations made in the complaint.
Nor can it under its hunch permit provisions of law
being abused to suit the mala fide motivated ends
of some unscrupulous complainant. In this case also
if indeed this Court been satisfied with the story
revealed by the complainant as truthful and
genuine, then anticipatory bail would have been
surely rejected right forth as a matter of course, but
since the submissions of Mr. Pardiwala have
considerable force, this Court has no alternative but
to accept the same in the larger interests of justice
to see that merely on the count of the firsthand
prejudice attempted to be caused by allegations in
the complaint, the petitioner-accused is not denied
his precious right of the anticipatory bail.
6. In view of the aforesaid discussion, though in a
way the learned A.P.P. is absolutely right when he
submitted that no anticipatory bail can be granted
to the petitioner-accused because of Section 18 of
the Atrocities Act, in the opinion of this Court, his
submission fails because at this stage it is too
difficult to rule out the probability of the
accusations levelled by the complainant against the
petitioner-accused having committed an offence
under the Atrocities Act being false, vexatious and
by way of counterblast as stemming from the
ulterior motive to humiliate, disgrace and
demoralise the petitioner-accused who is a public
servant. When that is the result and position, there
is no question of bypassing of Section 18 of the
Atrocities Act arises as apprehended by the learned
A.P.P. Taking into consideration the facts and
circumstances of this particular case, and in view of
the aforesaid discussion, this Misc. Criminal
Application for anticipatory bail deserves to be
allowed and is allowed accordingly”
62. The above view was reiterated in Dr. N.T. Desai (supra),
after considering the judgment of this Court in Balothia (supra).
It was observed that even taking Section 18 of the Atrocities Act
to be valid, if the Court, prima-facie, found the story of
71
complainant to be doubtful, the accused could not be allowed to
be arrested. Doing so would be unjudicial. It was observed;-
“8. To deal first with the preliminary objection raised
by the learned A.P.P. Mr. Desai, it may be stated that
the Supreme Court’s decision rendered in the case of
State of M.P. & Anr. v. Ramkishan Balothia (supra)
stands on altogether quite different footing where
the vires of Section 18 of the Act came to be
decided. The Apex Court has ultimately held that
Section 18 of the Act was not ultra vires. This Court
is indeed in respectful agreement with the aforesaid
decision of the Supreme Court….. ….. ….
…
…. … … …
But then having closely examined the complaint
more particularly in the context and light of the
backdrop of the peculiar facts situation highlighted
by the petitioner leading ultimately to filing of the
complaint, this Court prime facie at the very outset
is at some doubt about the complainant's story and
yet if it readily, mechanically like a gullible child
accepts the allegations made in the complaint at its
face value, it would be surely blundering and
wandering away from the path of bail-justice, making
itself readily available in the hands of the scheming
complainant who on mere asking will get arrested
accused on some false allegations of having
committed non-bailable offence, under the Atrocity
Act, meaning thereby the Court rendering itself quite
deaf, dumb and blind mortgaging its commonsense,
ordinary prudence with no perception for justice,
denying the rightful protection to the accused
becoming ready pawn pliable in the hands of
sometime scheming, unscrupulous complainants !!!
This sort of a surrender to prima facie doubtful
allegation in the complaint is not at all a judicial
approach, if not unjudicial !!...”
72
63. The above judgments correctly lays down the scope of
exclusion as well as permissibility of anticipatory bail in cases
under the Atrocities Act and are consistent with the view we take.
Section 18 of the Atrocities Act has, thus, to be read and
interpreted in this manner. At this stage, we may note that we
have seen a contra view of the Division Bench of the said High
Court in Pravinchandra N Solanki and Ors. versus State of
Gujarat
57
. We are unable to accept the said view for the reasons
already given and overrule the same.
64. Concept of “Due process” and principles of 8th Amendment
of the U.S. Constitution have been read by this Court as part of
guarantee under Article 21 of the Constitution. In State of
Punjab versus Dalbir Singh
58
, it was observed :
“80. It has already been noted hereinabove that in our
Constitution the concept of “due process” was
incorporated in view of the judgment of this Court in
Maneka Gandhi[(1978) 1 SCC 248] The principles of the
Eighth Amendment have also been incorporated in our
laws. This has been acknowledged by the Constitution
Bench of this Court in Sunil Batra [(1978) 4 SCC 494] In
Sunil Batra case, SCC para 52 at p. 518 of the Report,
Krishna Iyer, J. speaking for the Bench held as follows:
57 (2012)1 GLR 499
58 (2012) 3 SCC 346
73
“52. True, our Constitution has no ‘due process’ clause or
the Eighth Amendment; but, in this branch of law, after
Cooper [Rustom Cavasjee Cooper vs. UOI (1970) 1 SCC
248] and Maneka Gandhi the consequence is the same.
For what is punitively outrageous, scandalisingly unusual
or cruel and rehabilitatively counterproductive, is
unarguably unreasonable and arbitrary and is shot down
by Articles 14 and 19 and if inflicted with procedural
unfairness, falls foul of Article 21.”
xxx xxxx xxxx
84. The principle of “due process” is an emanation from
the Magna Carta doctrine. This was accepted in American
jurisprudence (see Munn v. Illinois [24 L Ed77], L Ed p.
90 : US p. 142). Again this was acknowledged in Planned
Parenthood of Southeastern Pennsylvania v. Casey [120 L
Ed 2d 674] wherein the American Supreme Court
observed as follows:
“The guarantees of due process, though
having their roots in Magna Carta’s ‘per
legem terrae’ and considered as procedural
safeguards ‘against executive usurpation
and tyranny’, have in this country ‘become
bulwarks also against arbitrary legislation’.”
85. All these concepts of “due process” and the concept
of a just, fair and reasonable law have been read by this
Court into the guarantee under Articles 14 and 21 of the
Constitution….”
65. Presumption of innocence is a human right. No doubt,
placing of burden of proof on accused in certain circumstances
may be permissible but there cannot be presumption of guilt so as
to deprive a person of his liberty without an opportunity before an
independent forum or Court. In Noor Aga versus State of
Punjab
59
, it was observed:
59 (2008) 16 SCC 417
74
“33. Presumption of innocence is a human right as
envisaged under Article 14(2) of the International
Covenant on Civil and Political Rights. It, however, cannot
per se be equated with the fundamental right and liberty
adumbrated in Article 21 of the Constitution of India. It,
having regard to the extent thereof, would not militate
against other statutory provisions (which, of course, must
be read in the light of the constitutional guarantees as
adumbrated in Articles 20 and 21 of the Constitution of
India).
xxxx xxxx xxxx
35. A right to be presumed innocent, subject to the
establishment of certain foundational facts and burden of
proof, to a certain extent, can be placed on an accused. It
must be construed having regard to the other
international conventions and having regard to the fact
that it has been held to be constitutional. Thus, a statute
may be constitutional but a prosecution thereunder may
not be held to be one. Indisputably, civil liberties and
rights of citizens must be upheld.
Xxxx xxxx xxxx
43. The issue of reverse burden vis-à-vis the human
rights regime must also be noticed. The approach of the
common law is that it is the duty of the prosecution to
prove a person guilty. Indisputably, this common law
principle was subject to parliamentary legislation to the
contrary. The concern now shown worldwide is that
Parliaments had frequently been making inroads on the
basic presumption of innocence. Unfortunately, unlike
other countries no systematic study has been made in
India as to how many offences are triable in the court
where the legal burden is on the accused. In the United
Kingdom it is stated that about 40% of the offences
triable in the Crown Court appear to violate the
presumption. (See “The Presumption of Innocence in
English Criminal Law”, 1996, CRIM. L. REV. 306, at p.
309.)
75
44. In Article 11(1) of the Universal Declaration of Human
Rights (1948) it is stated:
“Everyone charged with a penal offence has the right to
be presumed innocent until proved guilty according to
law….”
Similar provisions have been made in Article 6.2 of the
European Convention for the Protection of Human Rights
and Fundamental Freedoms (1950) and Article 14.2 of the
International Covenant on Civil and Political Rights
(1966).
Xxx xxxx xxx xxx
47. We may notice that Sachs, J. in State v. Coetzee
[1997(2) LRC 593] explained the significance of the
presumption of innocence in the following terms:
“There is a paradox at the heart of all criminal procedure
in that the more serious the crime and the greater the
public interest in securing convictions of the guilty, the
more important do constitutional protections of the
accused become. The starting point of any balancing
enquiry where constitutional rights are concerned must
be that the public interest in ensuring that innocent
people are not convicted and subjected to ignominy and
heavy sentences massively outweighs the public interest
in ensuring that a particular criminal is brought to book.
… Hence the presumption of innocence, which serves not
only to protect a particular individual on trial, but to
maintain public confidence in the enduring integrity and
security of the legal system. Reference to the prevalence
and severity of a certain crime therefore does not add
anything new or special to the balancing exercise. The
perniciousness of the offence is one of the givens,
against which the presumption of innocence is pitted
from the beginning, not a new element to be put into the
scales as part of a justificatory balancing exercise. If this
were not so, the ubiquity and ugliness argument could be
used in relation to murder, rape, car-jacking,
housebreaking, drug-smuggling, corruption … the list is
unfortunately almost endless, and nothing would be left
of the presumption of innocence, save, perhaps, for its
relic status as a doughty defender of rights in the most
trivial of cases.”
76
In view of the above, an accused is certainly entitled to show
to the Court, if he apprehends arrest, that case of the complainant
was motivated. If it can be so shown there is no reason that the
Court is not able to protect liberty of such a person. There cannot
be any mandate under the law for arrest of an innocent. The law
has to be interpreted accordingly.
66. We have already noted the working of the Act in the last
three decades. It has been judicially acknowledged that there are
instances of abuse of the Act by vested interests against political
opponents in Panchayat, Municipal or other elections, to settle
private civil disputes arising out of property, monetary disputes,
employment disputes and seniority disputes60. It may be noticed
that by way of rampant misuse complaints are ‘largely being filed
particularly against Public Servants/quasi judicial/judicial officers
with oblique motive for satisfaction of vested interests’
61
.
67. Innocent citizens are termed as accused, which is not
intended by the legislature. The legislature never intended to use
the Atrocities Act as an instrument to blackmail or to wreak
60 Dhiren Praful bhai (supra)
61 Sharad (supra)
77
personal vengeance. The Act is also not intended to deter public
servants from performing their bona fide duties. Thus, unless
exclusion of anticipatory bail is limited to genuine cases and
inapplicable to cases where there is no prima facie case was
made out, there will be no protection available to innocent
citizens. Thus, limiting the exclusion of anticipatory bail in such
cases is essential for protection of fundamental right of life and
liberty under Article 21 of the Constitution.
68. Accordingly, we have no hesitation in holding that exclusion
of provision for anticipatory bail will not apply when no prima
facie case is made out or the case is patently false or mala fide.
This may have to be determined by the Court concerned in facts
and circumstances of each case in exercise of its judicial
discretion. In doing so, we are reiterating a well established
principle of law that protection of innocent against abuse of law is
part of inherent jurisdiction of the Court being part of access to
justice and protection of liberty against any oppressive action
such as mala fide arrest. In doing so, we are not diluting the
efficacy of Section 18 in deserving cases where Court finds a case
78
to be prima facie genuine warranting custodial interrogation and
pre-trial arrest and detention.
69. In Lal Kamlendra Pratap(supra), this Court held that even
if there is no provision for anticipatory bail, the Court can grant
interim bail in suitable cases. It was observed :
“6. Learned counsel for the appellant apprehends that the
appellant will be arrested as there is no provision for
anticipatory bail in the State of U.P. He placed reliance on a
decision of the Allahabad High Court in Amarawati v. State
of U.P. [2005 Crl LJ 755 (All)] in which a seven-Judge Full
Bench of the Allahabad High Court held that the court, if it
deems fit in the facts and circumstances of the case, may
grant interim bail pending final disposal of the bail
application. The Full Bench also observed that arrest is not
a must whenever an FIR of a cognizable offence is lodged.
The Full Bench placed reliance on the decision of this Court
in Joginder Kumar v. State of U.P.[(1992) 4 SCC 260]
7. We fully agree with the view of the High Court in
Amarawati case and we direct that the said decision be
followed by all courts in U.P. in letter and spirit, particularly
since the provision for anticipatory bail does not exist in U.P.
8. In appropriate cases interim bail should be granted
pending disposal of the final bail application, since arrest
and detention of a person can cause irreparable loss to a
person’s reputation, as held by this Court in Joginder Kumar
case. Also, arrest is not a must in all cases of cognizable
offences, and in deciding whether to arrest or not the police
officer must be guided and act according to the principles
laid down in Joginder Kumar case.”
70. In Vikas Pandurang case (supra), it was observed :
79
“10. …..When an offence is registered against a person under the
provisions of the SC/ST Act, no court shall entertain an application
for anticipatory bail, unless it prima facie finds that such an
offence is not made out.”
71. Law laid down by this Court in Joginder Kumar (supra),
Arnesh Kumar (supra), Rini Johar (supra), Siddharam
Satlingappa (supra) to check uncalled for arrest cannot be
ignored and clearly applies to arrests under the Atrocities Act.
Protection of innocent is as important as punishing the guilty.
72. In Dadu alias Tulsidas versus State of Maharashtra
62
while considering the validity of exclusion of bail by an appellate
court in NDPS cases, this Court noted the submission that the
legislature could not take away judicial powers by statutory
prohibition against suspending the sentence during the pendency
of the appeal. This is an essential judicial function. The relevant
observations are:
“16. Learned counsel appearing for the parties were more
concerned with the adverse effect of the section on the
powers of the judiciary. Impliedly conceding that the
section was valid so far as it pertained to the appropriate
Government, it was argued that the legislature is not
competent to take away the judicial powers of the court by
statutory prohibition as is shown to have been done vide
the impugned section. Awarding sentence, upon
62 (2000)8SCC 437
80
conviction, is concededly a judicial function to be
discharged by the courts of law established in the country.
It is always a matter of judicial discretion, however, subject
to any mandatory minimum sentence prescribed by the
law. The award of sentence by a criminal court wherever
made subject to the right of appeal cannot be interfered or
intermeddled with in a way which amounts to not only
interference but actually taking away the power of judicial
review. Awarding the sentence and consideration of its
legality or adequacy in appeal is essentially a judicial
function embracing within its ambit the power to suspend
the sentence under the peculiar circumstances of each
case, pending the disposal of the appeal.”
73. On the above reasoning, it is difficult to hold that the
legislature wanted exclusion of judicial function of going into
correctness or otherwise of the allegation in a criminal case
before liberty of a person is taken away. The legislature could not
have intended that any unilateral version should be treated as
conclusive and the person making such allegation should be the
sole judge of its correctness to the exclusion of judicial function of
courts of assessing the truth or otherwise of the rival contentions
before personal liberty of a person is adversely affected.
74. It is thus patent that in cases under the Atrocities Act,
exclusion of right of anticipatory bail is applicable only if the case
is shown to bona fide and that prima facie it falls under the
Atrocities Act and not otherwise. Section 18 does not apply where
81
there is no prima facie case or to cases of patent false implication
or when the allegation is motivated for extraneous reasons. We
approve the view of the Gujarat High Court in Pankaj D Suthar
(supra) and Dr. N.T. Desai (supra). We clarify the Judgments in
Balothia (supra) and Manju Devi (supra) to this effect.
Issue of safeguards against arrest and false implications
75. We may now deal with the issue as to what directions, if any,
are necessary, apart from clarifying the legal position with regard
to anticipatory bail. The under privileged need to be protected
against any atrocities to give effect to the Constitutional ideals.
The Atrocities Act has been enacted with this objective. At the
same time, the said Act cannot be converted into a charter for
exploitation or oppression by any unscrupulous person or by
police for extraneous reasons against other citizens as has been
found on several occasions in decisions referred to above. Any
harassment of an innocent citizen, irrespective of caste or
religion, is against the guarantee of the Constitution. This Court
must enforce such a guarantee. Law should not result in caste
hatred. The preamble to the Constitution, which is the guiding
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star for interpretation, incorporates the values of liberty, equality
and fraternity.
76. We are satisfied, in the light of statistics already referred as
well as cited decisions and observations of the Standing
Committee of
Parliament that there is need to safeguard innocent citizens
against false implication and unnecessary arrest for which there is
no sanction under the law which is against the constitutional
guarantee and law of arrest laid down by this Court.
77. We are conscious that normal rule is to register FIR if any
information discloses commission of a cognizable offence. There
are however, exceptions to this rule. In Lalita Kumari versus
State of U.P.63
, it was observed :
“115. Although, we, in unequivocal terms, hold that
Section 154 of the Code postulates the mandatory
registration of FIRs on receipt of all cognizable offences,
yet, there may be instances where preliminary inquiry may
be required owing to the change in genesis and novelty of
crimes with the passage of time. One such instance is in
the case of allegations relating to medical negligence on
the part of doctors. It will be unfair and inequitable to
prosecute a medical professional only on the basis of the
allegations in the complaint.
63 (2014) 2 SCC 1
83
xxxx xxxx xxxx
117. In the context of offences relating to corruption, this
Court in P. Sirajuddin [(1970) 1 SCC 595] expressed the
need for a preliminary inquiry before proceeding against
public servants.
xxxx xxxx xxxx
120.6. As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in
which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3 months’
delay in reporting the matter without satisfactorily
explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry.
120.7. While ensuring and protecting the rights of the
accused and the complainant, a preliminary inquiry should
be made time-bound and in any case it should not exceed
7 days. The fact of such delay and the causes of it must
be reflected in the General Diary entry.”
78. The above view is consistent with earlier judgments in
State of U.P. versus Bhagwant Kishore Joshi
64
and P.
Sirajuddin versus State of Madras
65
. In Bhagwant Kishore
it was observed:
64 AIR 1964 SC 221 = 1964(3) SCR 221
65 (1970) 1 SCC 595
84
“… … …In the absence of any prohibition in the
Code, express or implied, I am of opinion that it
is open to a Police Officer to make preliminary
enquiries before registering an offence and
making a full scale investigation into it. No
doubt, Section 5A of the Prevention of Corruption
Act was enacted for preventing harassment to a
Government servant and with this object in view
investigation, except with the previous
permission of a Magistrate, is not permitted to
be made by an officer below the rank of a
Deputy Superintendent of Police. Where
however, a Police Officer makes some
preliminary enquiries, does not arrest or even
question an accused or question any witnesses
but merely makes a few discreet enquiries or
looks at some documents without making any
notes, it is difficult to visualize how any possible
harassment or even embarrassment would result
therefrom to the suspect or the accused person.
… …”
In Sirajuddin (supra) it was observed:
“17. … …Before a public servant, whatever be his
status, is publicly charged with acts of dishonesty
which amount to serious misdemeanour or
misconduct of the type alleged in this case and a
first information is lodged against him, there must be
some suitable preliminary enquiry into the
allegations by a responsible officer. The lodging of
such a report against a person, specially one who
like the appellant occupied the top position in a
department, even if baseless, would do incalculable
harm not only to the officer in particular but to the
department he belonged to, in general. If the
Government had set up a Vigilance and AntiCorruption
Department as was done in the State of
Madras and the said department was entrusted with
enquiries of this kind, no exception can of taken to
an enquiry by officers of this department but any
such enquiry must proceed in a fair and reasonable
manner. … …”
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79. We are of the view that cases under the Atrocities Act also
fall in exceptional category where preliminary inquiry must be
held. Such inquiry must be time-bound and should not exceed
seven days in view of directions in Lalita Kumari (supra).
80. Even if preliminary inquiry is held and case is registered,
arrest is not a must as we have already noted. In Lalita Kumari
(supra) it was observed :
“107. While registration of FIR is mandatory, arrest of theaccused immediately on registration of FIR is not at allmandatory. In fact, registration of FIR and arrest of an
accused person are two entirely different concepts under
the law, and there are several safeguards available against
arrest. Moreover, it is also pertinent to mention that an
accused person also has a right to apply for “anticipatory
bail” under the provisions of Section 438 of the Code if the
conditions mentioned therein are satisfied. Thus, in
appropriate cases, he can avoid the arrest under that
provision by obtaining an order from the court.”
81. Accordingly, we direct that in absence of any other
independent offence calling for arrest, in respect of offences
under the Atrocities Act, no arrest may be effected, if an accused
person is a public servant, without written permission of the
appointing authority and if such a person is not a public servant,
86
without written permission of the Senior Superintendent of Police
of the District. Such permissions must be granted for recorded
reasons which must be served on the person to be arrested and to
the concerned court. As and when a person arrested is produced
before the Magistrate, the Magistrate must apply his mind to the
reasons recorded and further detention should be allowed only if
the reasons recorded are found to be valid. To avoid false
implication, before FIR is registered, preliminary enquiry may be
made whether the case falls in the parameters of the Atrocities
Act and is not frivolous or motivated.
Consideration of present case
82. As far as the present case is concerned, we find merit in the
submissions of learned amicus that the proceedings against the
appellant are liable to be quashed.
Conclusions
83. Our conclusions are as follows:i) Proceedings in the present case are clear abuse ofprocess of court and are quashed.
87ii) There is no absolute bar against grant ofanticipatory bail in cases under the Atrocities Act ifno prima facie case is made out or where onjudicial scrutiny the complaint is found to be primafacie mala fide. We approve the view taken andapproach of the Gujarat High Court in Pankaj DSuthar (supra) and Dr. N.T. Desai (supra) andclarify the judgments of this Court in Balothia(supra) and Manju Devi (supra);Iii) In view of acknowledged abuse of law of arrest incases under the Atrocities Act, arrest of a publicservant can only be after approval of theappointing authority and of a non-public servantafter approval by the S.S.P. which may be grantedin appropriate cases if considered necessary forreasons recorded. Such reasons must bescrutinized by the Magistrate for permitting furtherdetention.
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iv) To avoid false implication of an innocent, apreliminary enquiry may be conducted by the DSPconcerned to find out whether the allegationsmake out a case under the Atrocities Act and thatthe allegations are not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will beactionable by way of disciplinary action as well ascontempt.
The above directions are prospective.
84. Before parting with the judgment, we place on record our
sincere appreciation for the invaluable assistance rendered by
learned Amicus and also assistance rendered by learned counsel
who have appeared in this case.
The appeal is accordingly allowed in the above terms.
……………………………….J.
[ADARSH KUMAR GOEL]
……………………………….J.
[UDAY UMESH LALIT]
NEW DELHI;
MARCH 20, 2018
Note: Highlighting in quotations is by us
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